Marcelina Manarang Canono (Feme Sole) v. Mr & Mrs Sr Butt

Case No.HCLA 30/1983

Court

HCLA

Date—

Judge—

Case Document

100%Judiciary

HCLA000030/1983

IN THE HIGH COURT OF JUSTICE	LABOUR TRIBUNAL APPEAL
	NO. 30 OF 1983

BETWEEN: -

	Marcelina Manarang Canono (feme sole)	Appellant
	- and -
	Mr. & Mrs. S.R. Butt	Respondents

_______________________

Coram: The Honourable Mr. Justice Jones in Court

Date: 22nd November 1983

Mr. Payne (Director of Legal Aid) for Appellant

Respondents in person

___________

JUDGMENT

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1. This is an appeal against the decision of the Presiding Officer of the Labour Tribunal made on the 4th July 1983 when he dismissed the appellant's claim and allowed the respondents counterclaim in part. Leave to appeal was granted by Clough J. on the 26th September 1983.

2. The appellant who is a Filipina entered into a contract of employment with the respondents on the 6th September 1982 to serve as a domestic helper. The contract was for a period of 2 years commencing on the day on which the appellant arrived in Hong Kong at a monthly wage of $1,350. The appellant commenced employment at the end of December 1982.

3. Unfortunately relations between the parties became strained with the result that on the 17th February 1983 the appellant gave notice of termination to the respondents pursuant to Clause 12(a) of the contract and tendered one month's wages in lieu of notice. The respondents admit that they did not accept the appellant's notice and one month's wages, but demanded not only one month's wages in lieu but a further sum of $1,000 pursuant to a document entitled dentitled Letter of Agreement that was prepared by them and signed by the appellant. The respondents also admit that they refused to pay the appellant's return air fare to the Philippines. Upon her refusal to accept the respondents' terms the appellant was told to leave.

4. In the proceedings before the Labour Tribunal the appellant claimed the sum of $3,233 which was made up as follows: -

(a)	Air fare Hong Kong to Philippines	$	719
(b)	Statutory holiday pay for Chinese New Year	$	135
(c)	Balance of wages in arrear 26/12/82-17/2/83	$	1,029
(d)	One month's wages in lieu of notice	$	1,350

5. The respondents lodged a counterclaim for the sum of $4,069 being: -

(a)	One month's wages in lieu of notice	$	1,350
(b)	Sum due under agreement with appellant	$	1,000
(c)	Air fare Philippines to Hong Kong	$	719
(d)	Agency fee	$	1,000

6. The Presiding Officer in dismissing the claim of the appellant held that she had left her employment of her own accord without giving proper notice to the respondents. He also dismissed all the items in the counterclaim except for the claim of one month's wages in lieu of notice.

7. When the appellant submitted her notice of termination under Clause 12(a) of the contract the respondents became responsible in any event by Clause 12(d) to pay for her return passage to the Philippines. This thev have refused to do without any legal justification.

8. The Letter of Agreement under which the respondents demanded an additional $1,000 sets out the following clauses: -

	(1)	Absolute cleanliness, honesty, diligence and obedience.
	(2)	No smoking or drinking.
	(3)	Your household management must follow the instructions of your employer.
	(4)	Method of child/baby-care be carried out according to your employers instructions.
	(5)	As your employer's family will have Chinese/European food most of the time, please be prepared to get use to Chinese/European food and be prepared to learn how to cook Chinese/EuSropean dishes.
	(6)	As your employer is concerned about your safety, during your day off, please return home not later than 10.00 P.M. That does not mean you have to work, you can take a rest or do anything you want at home.
	(7)	Your duty includes all kinds of housework: cooking, washing, ironing, marketing, cleaning the house and taking care of the children, etc. As for the children, you must give enough care, love and patience.
	(8)	You will be provided with uniform/you must bring your own clothing for daily use.

9. A more impudent set of conditions in this day and age is hard to imagine. Mr. Payne who appeared for the appellant aptly described them as savouring of the dark ages.

10. Clause 13 of the contract provides that any variation or addition to the terms during its duration shall be made only with the consent of the Commissioner for Labour. There was no evidence before the Presiding Officer that the respondents had obtained the consent of the Commissioner for Labour to impose these additional terms. As a result the Letter of Agreement is void. It was also void on the further ground that there was a total lack of consideration. The respondents demand to be paid $1,000 under the Letter of Agreement was accordingly invalid.

11. By refusing the appellant's notice of termination and making their unlawful demand for a further $1,000 the respondents retained, the appellant in their employment. As a result the appellant's employment was terminated when she was told to leave forthwith by the respondents. Clause 12(b) enables the employer to terminate the contract without notice if the employee should:-

(i)		wilfully disobeys a lawful and reasonable order;
(ii)		commits misconduct, such misconduct being inconsistent with the due and faithful discharge of his/her duties;
(iii)		is guilty of fraud or dishonesty;
(iv)		is habitually neglectful in his/her duties, or
(v)		is unfit for further service as certified by a medical practitioner under Clause 9(c).

No grounds for so doing were justified by Clause 12(b) of the contract. Under those circumstances the Presiding Officer was in error when he made his finding that the appellant left her employment of her own accord. If the Presiding Officer had applied himself correctly to the facts and the law he could only have come to the conclusion that the respondents had dismissed the appellant without notice.

12. Another illustration of the respondents' disregard for their contractual obligations was their failure to observe Clause 11 of the contract by which they were required to provide the appellant with free furnished accommodation. The unchallanged evidence before the Labour Tribunal revealed that the appellant did not have her own bedroom but had to wait up every evening until the respondents retired for the night and then had to sleep on the floor.

13. The respondents admit that they did not pay the appellant wages for the period from the 1st-17th February 1983 which amount to $765. The Presiding Officer made no finding as to whether the respondents failed to pay the sum claimed for the statutory holidays at Chinese New Year or the balance of wages in arrear from the 26th December 1982 until the 31st January 1983. Upon consideration of the evidence I draw the inference that these sums were not paid as alleged by the appellant.

14. The appeal will therefore be allowed and the order of the Presiding Officer is set aside. The appellant is entitled to judgment for $3,323 made up as follows : -

(1)	Air fare Hong Kong to Philippines	$	719
(2)	Statutory holiday pay for Chinese New Year	$	135
(3)	Balance of wages in arrear	$	1,119
(4)	One month's wages in lieu of notice	$	1,350

There will be interest on this sum at 10% from the 17th February 1983. The counterclaim of the respondents is dismissed. Costs of the hearing before the Labour Tribunal and of the appeal will be to the appellant. There will be the usual taxation in accordance with the Legal Aid (Scale of Fees) Regulations.

	(B.L. Jones )
	Judge of the High Court

Representation:

Mr. Payne (Director of Legal Aid) for Appellant

Respondents in person