Lisuryani v. Fung Mei Wa Shirley

HCLA 28/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 28 OF 2012

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 3105 OF 2012)

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BETWEEN

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D E C I S I O N

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1.This is the Claimant’s application for leave to appeal against the decision of the Presiding Officer of the Labour Tribunal, of 26 November 2012. The claims made by the Claimant in these proceedings against her employer were dismissed by the Presiding Officer, on the ground that the contract of employment had been terminated prior to its commencement.

2.Under section 32 of the Labour Tribunal Ordinance, any party dissatisfied with an order or determination by the Tribunal may apply to the Court of First Instance for leave to appeal, on the ground that the order is erroneous in point of law, or outside the jurisdiction of the Tribunal.  The applicant for leave has to show that the intended appeal has arguable grounds for appeal.

3.The order of the Presiding Officer, whereby the Claimant’s case was dismissed, was based on her rejection of the Claimant’s evidence, and her acceptance of the evidence of the Defendant’s employment agents, that, after the employment contract was signed on 2 June 2012, the Claimant had telephoned the agency on 23 July 2012 whilst she was in Indonesia, and had informed the agency that she was pregnant.  The Presiding Officer accepted the evidence of Mena, the agent in question, that the Claimant asked her for a loan for an abortion in Indonesia, and informed Mena that if she could not get the loan, she would not return to Hong Kong to work for the Defendant.  The Presiding Officer further accepted Mena’s evidence that in the course of the two telephone conversations she had with the Claimant between 23 July and 30 July 2012, Mena had informed the Claimant not to return to Hong Kong, to have her baby in Indonesia, and not to consider the employment contract.  Mena’s evidence is that she then informed her colleague Kendy to find a replacement helper for the Defendant. 

4.The Presiding Officer rejected the entirety of the Claimant’s evidence in the case, that Mena had only told her that she had not been able to contact the Defendant to discuss the Claimant’s pregnancy, that Mena had refused to give the Defendant’s telephone number to the Claimant upon her return to Hong Kong, and the Claimant’s reasons for failing to attend at the premises of the Defendant after her arrival. 

5.On the basis of her factual findings, the Presiding Officer found that the employment contract had been terminated before the Claimant’s arrival and landing in Hong Kong on 29 July 2012, which can only mean that the contract had been terminated by Mena on the Defendant’s behalf in the course of their telephone conversation in late July 2012.  In reliance on the provisions of clause 2(A) of the employment contract, which provides that the employment term of two years commences on the date on which the domestic helper, ie the Claimant, arrives in Hong Kong, the Presiding Officer found that the employment had been terminated before its commencement upon the Claimant’s return to Hong Kong on 29 July 2012, and that accordingly the Claimant had no basis for her claims against the Defendant. 

6.The Claimant argues that her employment should not be governed by clause 2(A) of the contract, but by clause 2(C), which provides that the employment of two years commences on the date on which the Director of Immigration grants to her permission to remain in Hong Kong to begin employment.  The evidence of the Claimant is that she was granted a work permit by the Hong Kong Immigration Department on 4 July 2012.  It is not disputed in the proceedings that the Claimant had completed her contract of employment with another employer in Hong Kong, that she had signed the contract with the Defendant on 2 June 2012, and that it had been agreed between the Claimant and the Defendant that the Claimant would leave Hong Kong and return to Indonesia first, then return to Hong Kong on 29 July 2012, to commence work with the Defendant under her new contract with the Defendant. 

7.The standard form of the employment contract with domestic helpers recruited from outside Hong Kong cater for different circumstances when a domestic helper signs a new contract with an employer in Hong Kong, when the helper renews the contract with the same employer, or when the employer signs the contract in Hong Kong for recruitment of the helper situated outside Hong Kong.  The form of the employment contract exhibited by the Claimant refers, in its footnote, to the use of either clause 2(A), 2(B) or 2(C) as appropriate, although none of the subclauses in question were in fact deleted in the contract between the Claimant and the Defendant in this case. 

8.It is arguable that on the evidence, clause 2(C) and not clause 2 (A) is applicable to the Claimant’s contract with the Defendant, in which case, it is arguable that the employment commenced on 4 July 2012 when the Director of Immigration granted to the Claimant a work permit or permission to remain in Hong Kong to begin employment with the Defendant, as the Claimant alleges.  The Presiding Officer did not give any reasons as to why clause 2(A) is applicable, and not the other 2 sub-clauses, and did not appear to have considered the application of clause 2(C) at all. 

9.For these reasons, I allow the Claimant’s application for leave to appeal against the Presiding Officer’s finding in law that the employment was terminated before its commencement on 29 July 2012.

The Claimant appeared in person