Setyoningsih Sulis v. Cheng Yin Ching

Labour Tribunal Appeal No. 35 of 1993

IN THE SUPREME COURT OFHONG KONG

HIGH COURT

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BETWEEN

Coram: The Hon. Mr. Justice Mayo in Court

Date of Hearing: 19th October, 1993

Date of Delivery of Judgment: 19th October, 1993

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JUDGMENT

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1. The Appellant is appealing against the Decision of a Presiding Officer of the Labour Tribunal who disallowed 3 of the claims she was making against her Employer.

2. The Appellant, who is an Indonesian was employed as a Domestic Servant. The standard form of contract which is approved by the Hong Kong Government governed the relationship between the parties.

3. Her grounds of appeal are :-

"1. Wages in lieu of notice. That the learned Presiding Officer erred in law in finding that the Applicant was not entitled to wages in lieu of notice on the ground that she had left her employment of her own volition. He ought to have held that the contract of employment was frustrated on expiration of the Applicant's employment visa consequential upon the Defendant's failure or refusal to sponsor the Applicant's application for renewal thereof;

2. Rest day pay. That the learned Presiding Officer erred in law in holding that the Applicant was not entitled to payment for working on rest days unless there were an express agreement. He ought to have held that such an agreement could be implied, alternatively that the Applicant was entitled to payment on the basis of quantum merit or quasi-contract; and

3. Underpayment. That the learned Presiding Officer erred in law in proceeding on the basis that it was the obligation of the Applicant to produce receipts to prove that she had been underpaid. He ought to have held that it was the obligation of the Respondent under the contract of employment to produce proof of payment. "

4. Mr. Beaumont for the Appellant did not pursue the second ground.

5. On the first ground he referred to Clause l2(a) of the contract which reads :-

"12. (a) In the event of either party wishing to terminate this Contract prior to the expiry of this Contract, the initiating party shall give in writing to the other party one month's notice or forfeit one month's wages in lieu of notice. In the case of the former, both the Employer and the Helper shall within seven working days following notice of termination of the Contract inform the Director of Immigration and the Commissioner for Labour of the date of termination. In the case of the latter, the written notification should be made within one working day. In both cases, the Employer shall provide to the Director of Immigration a copy of the written advice of termination or notice of termination of the contract given to the Helper."

Mr. Beaumont went on to submit that the Presiding Officer made a mistake of Law in his failure to consider the effect of the Respondent's admission that she had never given notice in writing terminating the contract. I accept the validity of this submission. The failure to comply with Clause 12 meant that there was no formal determination of the contract when the conversation took place between the parties concerning the passport and the Appellant's future plans. Without such termination the contract continued to run and the Appellant was entitled to continue to receive remuneration until she could no longer perform her services. The period covered by this was 7th - 30th September, 1992. The amount payable was $2,400.00. I am satisfied that the Respondent should have paid this amount and this part of the appeal is allowed.

3. Underpayment

6. Clause 5 of the contract provides :-

"5. (a) The Helper shall receive wages at a rate of HK.$3,000.00 per month.

(b) The Employer shall provide a receipt for payment of wages and the Helper shall acknowledge receipt of the amount of wages under his/her signature.

(c) Wages shall be paid by the Employer in cash on the last working day of each calendar month provided that payment of wages by cheque into the Helper's bank account may be made with the consent of the Helper.

(d) The Employer shall encourage the Helper to remit part of his /her salary to his/her family, dependents or beneficiaries in his/her place of origin."

7. The Respondent agrees that no such receipts were ever obtained from the Appellant.

8. It seems to me that the requirements of this Clause are specifically designed to protect an Employer from the type of claim which is being made under this ground of appeal.

9. Mr. Beaumount submitted that the Presiding Officer was wrong in law in dealing with this matter in the way he did.

10. The Presiding Officer seems to have been under the impression that the Appellant should have been able to produce the receipts referred to. This obviously was a misconception of the purpose to be served by the receipts.

11. There was a further complication. The Appellant did produce as evidence 2 receipts bearing the chops of the Respondent's company which purported to state that the Employer's company had received $1,000.00 on each occasion from the Appellant.

12. The explanation which was given by the Respondent for this was that the Appellant must have stolen the receipts which had had the company's chop previously affixed to them.

13. I am satisfied that the Presiding Officer failed to deal with this matter in a satisfactory manner. I also consider that he failed to fully understand the purpose of the receipts when he considered the conflict of evidence between the Employer and the employee. I think it is likely that this misunderstanding was the reason why he rejected the Appellant's evidence on underpayments. No convincing reason was given for the absence of receipts. I consider that this claim should have been allowed in full. The amount being claimed was $24,500.00 and I allow this ground of appeal and order that the Respondent must pay the Appellant this amount.

14. This deals with all the matters which were raised. I will hear Mr. Beaumount on costs.

Mr. Ben Beaumont inst'd by Boase & Cohen assigned by Director of Legal Aid for Applicant

Madam Cheng Yin Ching, Respondent in person