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Dumayag, Analyn Pedro v Leung Mei Ling And Another

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date23 January 2020
Neutral Citation[2020] HKCFI 276
Year2020
Judgement NumberHCLA23/2016
Subject MatterLabour Tribunal Appeal
CourtCourt of First Instance (Hong Kong)
HCLA23/2016 DUMAYAG, ANALYN PEDRO v. LEUNG MEI LING AND ANOTHER

HCLA 23/2016

[2020] HKCFI 276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 23 OF 2016

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 173 OF 2016)

________________________

BETWEEN
DUMAYAG, ANALYN PEDRO Claimant
(Applicant)

and
LEUNG MEI LING 1st Defendant
THE PERSONAL REPRESENATIVE OF
THE ESTATE OF
CHOW SIU KAM MARY, DECEASED 2nd Defendant

________________________

Before: Deputy High Court Judge MK Liu in Chambers
Date of the Claimant’s written submissions: 13 January 2020
Date of Decision: 23 January 2020

________________________

DECISION

________________________

1. The claimant has made 3 applications:

(1) application for leave to appeal on point of law filed on 27 August 2016 (“the Leave Application”);

(2) application for leave to amend the Leave Application made in the claimant’s solicitors’ letter dated 9 October 2019[1] (“the Amendment Application); and

(3) application made by the applicant’s summons dated 13 November 2019 for an order to restore the Leave Application (“the Restoring Application”).

2. On 24 December 2019, I directed that all the 3 applications would be dealt with on paper. Subsequently, pursuant to my directions, Mr Kay KW Chan, counsel for the claimant, has provided me his written submissions dated 13 January 2020 to the court on 17 January 2020. I am grateful for the assistance rendered by counsel to the court.

BACKGROUND

3. I would first set out the background of this case.

4. The claimant commenced proceedings against Madam Leung Mei Ling (“Leung”) and the personal representative of the estate of Madam Chow Siu Kam Mary (“Chow”) by filing her Form of Claim (Form 2) dated 18 January 2016 in the Labour Tribunal. The claimant claimed for statutory and contractual entitlements upon her constructive dismissal for arrears of wages, annual leave payment, wages in lieu of notice, severance payment, the costs of air-tickets; food & travelling allowance for going back to her country and travelling expenses, totalling HK$202,929.55.

5. The claimant’s case before the tribunal was as follows:

(1) She was a domestic helper in Leung’s home from 23 March 2003 to 2 December 2015.

(2) There were 5 consecutive written employment contracts. Leung submitted the first 4 employment contract to the Immigration Department (“ImmD”) for approval, where approval was granted:

Contract number Contractual period ImmD’s approval
1 D790999 23/3/2003 – 22/03/2005 Obtained
2 E623275 23/3/2005 – 22/03/2007 Obtained
3 E901110 23/3/2007 – 22/03/2009 Obtained
4 G715385
(“4th Employment Contract”)		 23/3/2009 – 22/03/2011 Obtained, but not obtained after 2nd December 2009
5 H479131
(“5th Employment Contract’)		 It is stated to be “for a period of two years commencing on the date on which the Helper arrives in Hong Kong” (Clause 2 of the 5th Employment Contract) Not obtained

(3) The “employer” of the claimant was stated to be Chow in the first 4 employment contracts and Leung in the 5th Employment Contract.

(4) The claimant’s work duties under all the employment contracts were stated to entail serving 3 adults and 2 minors (aged between 5 – 18 years) in the address which was later found to be the address of Leung. Chow did not live in the address provided in any of the employment contracts, neither was she part of Leung’s household.

(5) The claimant argued in the tribunal that she was in a de facto employment relationship with Leung, and Leung was the de facto employer and the claimant was Leung’s de facto employee since 23rd March 2003. From 23 March 2003 to 2 December 2015, the claimant was in continuous employment with Leung. Leung owed the sums claimed by the claimant, which were the claimants’ contractual entitlements.

(6) Chow passed away on 2 December 2009, in the middle of the 4th Employment Contract. Leung deceived the claimant into believing that the ImmD would take no issue with it, and the employment relationship between Leung and the claimant would continue as usual.

(7) When the 4th Employment Contract was due to expire in March 2011, D1 asked for the claimant’s passport and to sign the 5th Employment Contract. D1 has since retained the claimant’s passport. As a result, the claimant obtained a new passport from the Philippines Consulate in July 2018.

(8) The claimant treated herself as constructively dismissed and left Leung’s home on 2 December 2015 when Leung behaved in the following manners that amounted to significant breach of contract of employment:

(a) Leung failed to (and/or refused to) reply the claimant about the process of obtaining approval from ImmD;

(b) Leung failed to (and/or refused to) obtain approval from ImmD for the 5th Employment Contract; and

(c) Leung failed to (and/or refused to) pay the claimant wages owed to her.

6. The case was heard ex parte by Deputy Presiding Officer Ms Jocelyn Leung on 18 August 2016. At the end of the hearing, the tribunal dismissed the claimant’s claim. On 23 September 2016, written reasons for decision (“Reasons for Decision”) were handed down. The tribunal has made the following findings:

(1) The tribunal doubted the evidence given by the claimant and found that she was not able to establish her case on the balance of probabilities[2].

(2) In respect of the contention that Leung was the claimant’s de facto employer since 23 March 2003 (“the First Contention”), the tribunal doubted whether Chow only had a limited involvement in the claimant’s employment as alleged, and the tribunal also found the claimant’s evidence relating to this contention as unreasonable. The tribunal rejected the claimants’ evidence[3].

(3) The claimant made a second contention (“the Second Contention”) in the hearing before the tribunal: After Chow passed away on 2 December 2009, the claimant was under the employment of Leung with implied terms under the Employment Ordinance and the standard contract concerning foreign domestic helpers, and the implied contract was enforceable even without the approval given by ImmD. As to this, the tribunal regarded the evidence given by the claimant as unsatisfactory and did not accept her evidence. The tribunal found that the claimant had all along known that her work with Leung was not approved by ImmD[4]. The tribunal found that there was no force or coercion applied by Leung to make the claimant work for her[5]. The tribunal also found that both the claimant and Leung were equally reprehensible in failing to obtain the ImmD’s approval, and the claimant’s employment with Leung was clearly illegal and the contract between them was not enforceable[6].

7. As a result of the conclusion reached, the tribunal has referred the case to ImmD for investigation[7].

8. On 27 August 2016, the claimant lodged 2 Forms 14, one was dated 26 August 2016 and the other was dated 27 August 2016. As to why there are 2 Forms 14 filed by the claimant, counsel submits that it is unclear what happened because the claimant was not legally represented at the time. Counsel requests that the 2 Forms 14 be treated as the Leave Application made by the claimant on 27 August 2016. I would proceed on this basis.

9. Counsel has told me that the original leave application was stayed due to the legal aid application made by the claimant at that time. Legal aid was granted to the claimant on 14 December 2017 and solicitors were retained on the same date. However, counsel was only engaged on 23 January 2019.

10. In or around July 2019, the claimant’s solicitors tried to make an application for leave to amend the Leave Application but were informed that they might not do so by the Registry. On 9 October 2019, the claimant’s solicitors then wrote to the court to make the Amendment Application and to seek directions. On 10 October 2019, the court directed that the matter be dealt with in the hearing of the Leave Application.

11. On 13 November 2019, the claimant’s solicitors took out a summons to make the Restoring Application.

12. Counsel has accepted that a finding of fact made by the tribunal is not subject to challenge on appeal, unless the finding of fact or an inference made from the facts are perverse or irrational, where there is no evidence to support it; or it was made by reference to irrelevant factors; or if it was made without regard to relevant factors[8].

13. Counsel has also accepted that in respect of the claims relating to the period from 23 March 2003 to 2 December 2009, the tribunal is correct in concluding that such claims have already been time-barred. As a result of this concession, the subject matter in the Leave Application is the claims relating to the period from 3 December 2009 to 2 December 2015 (“the Subject Period”). In essence, the claimant is relying upon the Second Contention in the Leave Application.

Merit of the Leave Application

14. I would first examine the merit of the Leave Application. In doing so, I would consider the draft Amended Form 14 on de bene esse basis. Counsel has helpfully summarized that as per the draft Amended Form 14, the grounds of appeal are as follows:


Ground 1
The tribunal misdirected itself in law, misunderstood the law or misapplied the law.

Ground 2
The tribunal misunderstood the facts or misapplied the facts.

Ground 3
The decision of the tribunal was made without regard to relevant factors or made without evidence.

Ground 1

15. Counsel has accepted that the later half of the 4th Employment Contract and the 5t...

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