Arzadon Eden Sarceda v. Wong Kit Yi Kitty

HCLA000037/2003

HCLA 37/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 37 OF 2003

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM
NOS. 6308 C/W 6310/2002)

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Coram: Deputy High Court Judge A Cheung in Chambers

Date of Hearing: 8 July 2003

Date of Judgment: 15 July 2003

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J U D G M E N T

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1.This is an application for leave to appeal against the decision of the Labour Tribunal made on 25 February 2003.

2.The Claimant was a domestic helper from the Philippines. She used to be employed by the Defendant. Her employment came to an end in October 2001. The Claimant's claim comprised arrears of wages, annual leave pay, free passage to the Philippines, travelling allowance to the Philippines, wrongful deduction of wages ($1,000), medical expenses, transportation expenses for medical treatment and miscellaneous expenses (Chinese medicine and a folding bed).

3.Having heard the evidence, the Tribunal dismissed the Claimant's various items of claim (except part of her claim regarding medical expenses).

4.As regards the first four claims, the Tribunal found that it was the Claimant who terminated the employment contract. This was clearly evidenced by a letter written by the Claimant on 13 October 2001. Moreover, in the presence of police officers, the Defendant wrote a letter dated 16 October 2001 acknowledging her acceptance of the Claimant's resignation, which letter was signed by both parties. It was stated in the letter that "the rest of the month's [payment] $3,860 will be paid now for settlement of any outstanding payment". The sum of $3,860 was duly paid by the Defendant to the Claimant at the same time. The Tribunal had no difficulty in concluding that in those circumstances, the first four items of claim had been fully satisfied by the payment of the sum of $3,860.

5.In relation to this part of the Tribunal's findings and conclusion, I can really see no arguable ground of appeal. The Tribunal made findings of fact which were fully supported by oral, and perhaps more importantly, documentary evidence. No error of law was involved. It is trite that in this type of appeals, this court cannot lightly disturb a finding of fact made by the Tribunal, unless an error of law is involved. As I said, so far as I can see, no error of law was involved. In any event, I am of the opinion that the Tribunal's findings and conclusion were fully supported by the available evidence.

6.As regards the claim about wrongful deduction of wages of $1,000, the Tribunal found that this was covered by an earlier settlement agreement made between the two parties at the Labour Department, which provided for the refund of the sum of $1,000. Despite the settlement agreement, the Claimant brought a claim against her employer in the Small Claims Tribunal, which had no difficulty in upholding the settlement agreement. In those circumstances, in my judgment, the Tribunal was clearly correct in concluding that the matter was entirely covered by the settlement agreement, which was binding on both parties, and the Claimant's claim in respect of the deduction of wages in the sum of $1,000 could not be sustained. No arguable ground of appeal is involved here.

7.As regards the medical expenses, according to the Tribunal, part of the expenses was in relation to the injection of a vaccine which was not due to any illness of the Claimant; as such the claim was not covered by clause 9 of the employment contract. For that reason, the Tribunal disallowed this part of the claim for medical expenses. I can find no fault with the Tribunal's reasoning and conclusion.

8.Finally, as regards the claim for miscellaneous expenses (Chinese medicine and a folding bed), I agree with the Tribunal that there was no provision in the employment contract, be it express or implied, that the Defendant should reimburse the Claimant in respect of this kind of expenses. Accordingly, the Tribunal was correct in rejecting the claim.

9.In conclusion, no arguable ground of appeal has been shown. The present application for leave is dismissed, with no order as to costs.

Representation:

Madam Arzadon Eden Sarceda, the Claimant, acting in person