Minarni v. Ho Ho Fan Ivy

HCLA 41/2017

[2018] HKCFI 852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 41 OF 2017

(On appeal from Labour Tribunal Claim No 3541 of 2017)

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D E C I S I O N

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1.The claimant, an Indonesian domestic helper in the employ of the defendant, was summarily dismissed[i] on 8 October 2017, whereupon she was paid $11,626, being the sum of:

(1)   $4,453 for her wages from 10 September to 9 October 2017;

(2)   $1,573 for her unused leave;

(3)   $100 as food and travelling allowances;

(4)   $2,500 to pay for her return air ticket; and

(5)   $3,000 described as a “discretionary payment”.

2.Upon payment and receipt of the said sum of $11,626, the claimant and the defendant signed a document dated 10 October 2017 (“10/10/2017 Document”) what appeared to be a printed standard form of the employment agency for use on the termination of a foreign domestic helper’s contract but which contained the following handwritten words: “I acknowledge recipient (sic) the above listed payment as full and final settlement of any claims against my employer” (emphasis added).

3.By a form of claim dated 13 November 2017 (Form 2) lodged with the Labour Tribunal (“Tribunal”) under Claim No 3541/2017, the claimant claimed against the defendant the sum of $27,701.39 comprising $4,226.66 for wages in lieu of notice and $23,474.73 for severance pay / long service payment (“Claim”).

4.At the end of a call-over hearing on 6 December 2017, Madam Ho Wai Yang, Acting Principal Presiding Officer, adjourned the hearing of the Claim sine die “pending the settlement agreement signed by the claimant and the defendant on 10 October 2017 being declared void, with liberty to restore” (“Order”).

5.The Presiding Officer so ordered to allow the claimant to seek legal advice on the 10/10/2017 Document and, if so advised, to bring a separate action before the appropriate court to have the same set aside.

(1)   The 10/10/2017 Document is prima facie a valid settlement agreement.

(2)   Although the claimant does not consider herself bound by such settlement on the ground that she signed it under coercion brought upon her by the defendant and the representative of the employment agency, unless and until it is declared void and set aside, the existence of a settlement agreement prevents the court from adjudicating on the matters settled.

(3)   The Tribunal has no jurisdiction to declare void and set aside a settlement agreement.

See the Presiding Officer’s Reasons for Decision dated 14 March 2018.

6.By an application dated 14 December 2017 (Form 14) herein, the claimant seeks leave from the Court of First Instance (“CFI”) to appeal against the Order.

7.Under s 32(1) of the Labour Tribunal Ordinance (Cap 25) (“LTO”), the CFI may grant leave to appeal against an award, order or determination by the Tribunal if it is either erroneous in point of law or outside the jurisdiction of the Tribunal.

8.The Order is clearly within the jurisdiction of the Tribunal.  To ground leave to appeal, the claimant must identify an error in law by the Presiding Officer.  I am afraid she has not done so.

9.I agree with the Presiding Officer that the 10/10/2017 Document, on its face, contains an agreement between the claimant and the defendant for the settlement of all the claimant’s claims against the defendant arising from the termination of the claimant’s contract of employment with the defendant, which would include any claims for wages in lieu of notice or severance pay / long service pay (“Settlement Agreement”) and that such agreement is binding on the claimant unless and until it is declared void and set aside by the court.

10.By virtue of s 7(1) of the LTO, the Tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule to the LTO.  A claim for a declaration of invalidity of an agreement settling an employer / employee’s rights or liabilities under the contract of employment is plainly not within such schedule.  See also Madam Justice Au-Yeung’s decision in Poon Kwok Leung Lenny v Sweett (China) Limited, HCLA 19/2012, unreported, 19 December 2012 at [15].

11.Indeed, it appears to me that the claimant has misunderstood the Order and/or the purpose of an application for leave to appeal.  More particularly, she seems to think that the Presiding Officer has decided against her on the Settlement Agreement or that she could obtain a determination avoiding the Settlement Agreement by appealing against the Order.  I say so because:

(1)   First, in her Form 14, the claimant has put down the following in the spaces intended for the particulars as to why it is said that the Order is erroneous in point of law or is outside the jurisdiction of the Tribunal:

“I would like to apply for the cancellation of the letter of consent which I have signed on the basis of agency and employer will at the date of 10-10-2017.

Why did I sign the salary approval, because the agent and the employer told me to snap me into signatures.  If I did not sign the wage approval they threatened me that I would not accept my finance a penny from work for (sic)” 

(2)   Second, at the hearing on 17 April 2018, the claimant has simply reiterated that she did not sign the Settlement Agreement out of her own free will but under pressure from the defendant and the representative of the employment agency.

12.The Presiding Officer has not made any determination regarding the validity of the Settlement Agreement either way.  She has simply decided, correctly, that the claimant has to go to another court for adjudication on the Settlement Agreement.  That other court is not the CFI hearing an application for leave to appeal against the Order.  On an application for leave to appeal under s 32 of the LTO, the CFI is confined to investigating if the award, order or determination under challenge is erroneous in point of law or outside the jurisdiction of the Tribunal.  It cannot do anything about the Settlement Agreement.  If the claimant wishes to pursue the matter, she has to commence fresh proceedings.

13.For these reasons, I dismiss the claimant’s application for leave to appeal against the Order.  I make no order as to costs.

The claimant appearing in person