Lorenzo Buenavilla v. Lam Yau Man

HCLA 8/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 8 OF 2013

(ON APPEAL FROM LABOUR TRIBUNALCLAIM NO.718 OF 2013)

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J U D G M E N T

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Introduction

1.The applicant seeks leave to appeal against the decision of the Acting Principal Presiding Officer, Madam Wu (“the PPO”), of the Labour Tribunal in relation to four heads of claim:

A. Arrears of wages;

B. Annual leave: 2 days’ deduction from pro-rata annual leave;

C. Bus fare (a) from Manila to Pangasinan and (b) bus fare to Hong Kong airport; and

D. Food and travelling allowance for coming and going home.

2.Under Section 32 of the Employment Ordinance, Cap 57 (“EO”), an appeal can only be entertained where there are errors of law or that the claim is outside the jurisdiction of the Labour Tribunal. All the grounds of appeal relied on by the applicant are on points of law concerning construction of the Domestic Helper’s Contract (“the Contract”) and the EO.  The only question is whether any of those grounds are arguable.

A. Arrears of wages

3.The applicant was a domestic helper of the defendant.  The issue was whether the wage period counted from the 7^th or 12^th day of a month. 

4.The Contract provided in Clause 2(A) that:

“The Helper shall be employed by the Employer as a domestic helper for a period of two years commencing on the date on which the Helper arrives in Hong Kong.”

5.The applicant arrived in Hong Kong on 7 January 2012 upon grant of permission to work in Hong Kong by the Director of Immigration.  She, however, admitted only having started to work for the defendant on 12 January 2012. Her employer has paid her since 12 January 2012.

6.The learned PPO ruled that the Contract should commence on the first day of actual performance, i.e. 12 January 2012 and the wage period should also commence on the 12^th day of each month. She took the view that since a domestic helper was recruited from abroad, it was uncertain when the Director of Immigration would have granted the helper permission to work in Hong Kong and when she could come to Hong Kong. Clause 2(A) was applicable to the case where the domestic helper immediately started to work for the employer on the arrival date.  As in the case of an ordinary employment contract, even if it was stated clearly in the contract that the employment would commence on a certain date, but for whatever reasons, the commencement date was brought forward or deferred to some later date, then the actual date on which the employee started to work and perform his/her contractual duty would be regarded as the commencement date of the employment.    

7.The learned PPO also took the view that even if the commencement date should have been 7 January 2012, that would not have made any difference since the applicant had not performed her duty as a domestic helper for the few days between 7 and 11 January 2012.  In the absence of consideration, the defendant had no contractual obligation to give her wages for those few days. 

8.Such reasons were, in my view, impeccable.  There is no arguable point of law shown for this head of claim.

B. Two-days’ deduction from pro-rata annual leave

9.Having found that the employment had commenced on 12 January 2012, the learned PPO found that pro-rata annual leave for the applicant was 5.94 days.  The applicant was requested by the defendant to take annual leave on two separate days and she has acknowledged this in writing to the defendant.  The PPO awarded her 3.94-day annual leave pay.

10.The applicant contends that annual leave should be granted for an unbroken period, which was rejected by the PPO.

11.The learned PPO based her reasoning on section 41AA(3) of  the EO which provides that:

“Subject to subsection 5(c), times at which annual leave is granted shall be determined by the employer after consultation with the employee concerned …”

12.The learned PPO further relied on section 41AA(5)(c)(i) of the EO which provides,

“where the leave entitlement does not exceed 10 days, it shall be granted on consecutive days except that not more than 3 days of the period of leave may be granted on any day or days (whether consecutive or not)”.

13.As the applicant was entitled to less than 10 days’ annual leave and had agreed to take annual leave on two separate days upon request of the defendant, the learned PPO held that the two days’ annual leave were granted in accordance with the EO.

14.In my view, the learned PPO’s analyses of the facts and the law were impeccable.

15.In her written grounds, the applicant argues that she was told to acknowledge the leave by the Defendant and that according to the EO, annual leave should be granted for an unbroken period.

16.First, there was no finding as to facts that the applicant acted involuntarily when signing the leave records.

17.Second, she did take the two days off.

18.Third, the broken annual leave was permitted by the EO.

19.No arguable point of law has been shown for the second head of claim.

C. Bus fare (a) from Manila to Pangasinan and (b) bus fare to Hong Kong Airport

20.The PPO ruled that upon termination of the Contract, the applicant was not entitled to claim for the bus fare incurred in the journey to the Hong Kong airport and the bus fare from Manila airport to Pangasinan under clause 7(a), but she could claim for a daily food and travelling allowance under clause 7(b) which had already been included in another item.

21.Clause 7(a) of the Contract provided that:

“The Employer shall provide the Helper with free passage from his/her place of origin to Hong Kong and on termination or expiry of the contract, free return passage to his/her place of origin.”

22.Applying the plain and ordinary dictionary meaning, the learned PPO construed the term “place of origin” of an employee as the “home country” in which the employee lived or was born.  She also held that the term “passage” meant “journey by air or by sea”, but did not include the journey from the employee’s residence to the airport, and that from the airport to the employer’s residence and vice versa. The Applicant was free to choose an airport which was the most convenient to her, and the Defendant was only responsible for the air ticket fee from Hong Kong to that particular airport at the place of origin (i.e. the Manila airport).

23.In my view, the learned PPO has overlooked clause 1 of the Contract, which provided that:

“The Helper’s place of origin for the purpose of this contract is … Pangasinan, Philippines.” (emphasis added).”

24.Since the definition of the place of origin was governed by contract, there was arguably no room for defining “the place of origin” as just the country where the employee originated from.  The employer should be responsible for the full passage costs from and to Pangasinan.

25.However, the learned PPO was correct in relying on Clause 7(b) which provided as follows:

“A daily food and travelling allowance of $100 per day shall be paid to the Helper from the date of his/her departure from his/her place of origin until the date of his/her arrival at Hong Kong if the travelling is by the most direct route. The same payment shall be made when the Helper returns to his/her place of origin upon expiry or termination of this contract.” (emphasis added)

26.The learned PPO held that the food and travelling allowance provided in Clause 7(b) was meant to cover the travelling expenses incurred in the journeys between residence to airport and vice versa.  The travelling allowance was paid in a fixed sum, regardless of what kinds of conveyance were used, whether by bus, train or taxi.

27.I agree with the learned PPO.  The travelling allowance was clearly meant to cover the bus fares claimed by the applicant.

28.Therefore, even though the learned PPO might have been wrong in her construction of the term “passage”, in view of the application of Clause 7(b), the applicant was not prejudiced.  She was still entitled to her bus fares, which the defendant was obliged to pay, although the amount would be limited by Clause 7(b). 

29.There is no arguable point of law in relation to the third head of ­­­­­­­­­claim.

D. Food and travelling allowance for departure from place of origin

30.The applicant stayed in Macau whilst waiting for the grant of permission to work for the defendant.  Upon grant of the permission, she came to Hong Kong from Macau but not from the Philippines.  Relying on Clause 7(b), the learned PPO held that since Macau was not the applicant’s place of origin, she could not make a claim under Clause 7(b).

31.In view of the definition of “place of origin” in clause 1 of the Contract, the reasoning of the learned PPO was impeccable. 

32.No arguable point of law is disclosed in relation to the fourth head of claim.

Conclusion

33.The learned PPO has not erred in law.  No arguable grounds of appeal have been shown for any of the items identified by the applicant.  This application is thus dismissed.

(Queeny Au-Yeung) Judge of the Court of First Instance High Court

The applicant appeared in person