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CACV000055/2000
CACV 55/2000
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 55 OF 2000
(ON APPEAL FROM DCCJ 1546/99)
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| BETWEEN |
| EVELYN SEMANA BACHICHA |
Plaintiff |
| AND |
| POON SHIU MAN HENRY |
Defendant |
____________________
Coram: Hon Godfrey VP, Rogers and Ribeiro JJA in Court
Date of Hearing: 16 June 2000
Date of Judgment: 18 July 2000
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J U D G M E N T
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Ribeiro JA:
1. This is an appeal involving an employment dispute between the plaintiff, a domestic helper from the Philippines, and her employer, the defendant.
2. Proceedings having been commenced by the plaintiff in the Labour Tribunal on 1 December 1998, the matter was transferred (for reasons mentioned later) to the District Court on 7 January 1999. After a three day trial at which neither party was legally represented, H H Judge C B Chan gave judgment for the plaintiff on 10 September 1999, holding that she had been constructively dismissed and awarding her damages totalling $51,629.00, plus interest and fixed costs in the sum of HK$896.00.
3. The defendant appeals against that judgment on two principal grounds. First, he contends that the parties had reached a binding settlement agreement at a conciliation meeting at the Labour Department on 20 October 1998, which should have precluded her claim (but which agreement the Judge wrongly ordered to be set aside). Secondly, he contends that the quantum of the damages awarded cannot be justified.
4. The plaintiff also appeals, complaining that the costs awarded should not have been confined merely to fixed costs.
A. The facts found by the Judge
5. At the trial, there was a considerable conflict of evidence. Most of the events giving rise to the dispute concerned incidents involving the plaintiff and Wong Wai-kwan ("Madam Wong"), the defendant's wife, who on a day-to-day basis acted as the plaintiff's boss. The Judge accepted all the plaintiff's evidence and rejected conflicting evidence given by the defendant or by Madam Wong.
6. The Judge's findings, including her finding of constructive dismissal, are not the subject of appeal. The issues raised by Mr Luiz da Silva Pedruco, appearing on the defendant's behalf, concern the legal consequences which flow from her findings. Accordingly, the facts may be summarised as follows, taken largely from the Judge's recitation of the plaintiff's evidence.
7. The contract whereby the plaintiff took up employment with the defendant was dated 30 September 1997 and appears to have been signed by the plaintiff on 7 October 1997, verified by a Philippines Labour Attache. It was of a two year duration commencing from the date of the plaintiff's arrival in Hong Kong, at the monthly salary of $3,860.00, terminable on one month's notice or payment in lieu. Material clauses included the following, namely :-
(1) Clause 3, which required the plaintiff to work and reside in the defendant's residence at G/F, 3B Lok Lo Ha Village, Fo Tan, New Territories.
(2) Clause 6, which drew attention to the plaintiff's entitlement to all rest days, statutory holidays and paid annual leave as specified in the Employment Ordinance.
(3) Clause 8, which obliged the defendant to pay or reimburse to the plaintiff :-
"the costs of preparing all necessary documents, which include medical examination fees, authentication fees by the relevant Consulate, visa and other processing fees".
(4) Clause 11, which provided for termination by notice or payment in lieu as follows :-
"Either party may terminate this contract by giving not less than one month's notice in writing or by paying the equal number of month's wages in lieu."
(5) Clause 13, which provided :-
"In the event of termination of this contract, both the Employer and the Helper shall give the Director of Immigration notice in writing within 7 days of the date of termination. A copy of the other party's written acknowledgment of the termination shall also be forwarded to the Director of Immigration."
(6) Clause 14, which stated : -
"Should both parties agree to enter into a re-engagement contract, the Helper shall, before any such further period commences and at the expense of the Employer, return to his/her place of origin for a paid/unpaid vacation of not less than 7 days, unless prior approval for extension of stay in Hong Kong is given by the Director of Immigration."
(7) Clause 16, dealing with contractual variations as follows :-
"Save for the following variations, any variation or addition to the terms of this contract during its duration shall be void unless made with the consent of the Commissioner for Labour in Hong Kong:
(a) a variation of the Employer's residential address stated in clause 3 by mutual agreement and upon notification in writing being given to the Director of Immigration;
(b) a variation of the period of employment stated in clause 2 through an extension of the said period by mutual agreement."
8. On 26 February 1998, the Plaintiff came to Hong Kong to commence work. It follows that in the ordinary course, her contract would have run until 26 February 2000.
9. However, the employment relationship lasted only just over 6 months before the plaintiff's constructive dismissal. It is in fact clear that from the start, the plaintiff was subjected by her employers to an oppressive and exploitative work regime, in disregard of her legal rights. The Judge described her working conditions as follows :-
" ...... her employer and his wife had 2 children, one boy aged 9 and one girl aged 8. They also had two dogs as well as 20 boxes of pet mice. The animals were kept on the balcony.
Her female employer was always bad-tempered with her. Even for a small matter she would get angry with her, push her, shout at her and pull her hair. The two kids were always kicking her and punching her.
She had a lot of work each day. She woke up at 6 a.m. in the morning. Her work included taking the 2 dogs for walks 3 times a day; washing and cleaning 20 boxes wherein the pet mice were kept including putting in the feed and fresh water. Cleaning the balcony and things therein, taking the daughter to school from Fo Tan to Yau Ma Tei; washing clothes, ironing, cooking breakfast, lunch and dinner, general cleaning of the house; tidying up; helping the children to bathe; help the children with their home work; washing the dishes and pots and pans after meals. She had to cook for the two dogs in the evening and feed them before taking them out for a walk. She often found that she would not finish work until late into the evening because of the volume of work.
On her rest days, she was required to work from 6 a.m. until 10:30a.m. before she could go out. When she returned at 8:30 p.m. she had to work until mid-night ......
...... she was required to clean three other premises from time to time. The addresses were:-
1. Flat C, 10th Floor, Hope Yick Centre in Hop Yick Road, Yuen Long, N.T.
2. Flat E, 3rd Floor, Block E, On Ning Building, Shatin Centre, N. T.
3. Flat B4, 23rd Floor, in a flat in Pok Fu Lam near St. Paul's College.
In respect of above three premises she had to clean the floor, all the windows, cabinets, walls, kitchen and bathroom.
She was feeling very tired all the time. Of course, she was unhappy. She denied the allegation of the Defendant that she was slow in her work. She stated that there was just too much work to do."
10. Madam Wong was unhappy with the plaintiff's work. It appears that her dissatisfaction had much to do with her own notions of status and of a perceived lack of respect shown by the plaintiff. For example, as found by the Judge:-
"She found the Plaintiff's ability to understand her was very low. She found the Plaintiff was impolite because she did not greet her and her children 'Good Morning' each morning. She felt that was the appropriate way for the Plaintiff as a domestic helper to behave. The Plaintiff stated that she did not intentionally fail to say 'Good Morning' but she was usually very occupied with work and was so busy that she failed to say 'Good Morning' only sometimes. DW1 also stated that she asked her daughter as to whether the Plaintiff smiled when she saw the daughter when picking her up from school and the daughter had informed her that she did not. DW1 stated that when they take the daughter to school together, when the Plaintiff got off the bus, the Plaintiff did not say goodbye to her."
11. Madam Wong also complained that the plaintiff was too slow in her work and accused her of lacking security consciousness. However, none of these complaints were of any weight and in truth, Madam Wong had apparently, for whatever reason, developed somewhat violent feelings of personal antagonism towards the plaintiff. She decided to replace the plaintiff with a new domestic helper from the Philippines and was informed by an employment agency on 26 August 1998 that the replacement would be arriving in early October.
12. Madam Wong thereupon gave the plaintiff notice to terminate her employment. A handwritten letter dated 1 September 1998 and signed by the defendant was handed to the plaintiff (according to the defendant on 30 August, but according to the plaintiff on 2 September) stating that her last day of work would be on 30 September 1998. The plaintiff was pressed to sign at the foot of the letter under the words "Accepted & agreed". She refused.
13. On 6th September 1998 Madam Wong again pressed the plaintiff to sign, leading to an incident described as follows by the Judge:-
"On the 6th Sept. 1998, DW1 asked the Plaintiff to sign it....
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