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Labour Tribunal rules China work of DH is ‘legal’

17 July 2017

By Vir B. Lumicao

A Filipina domestic helper lost a claim for damages against her former employer after the Labour Tribunal rejected her accusation that the female boss breached Hong Kong Immigration rules by making her work illegally on the mainland.

Presiding Officer Jacqueline Lee also dismissed Gladys Chua’s allegation that she was punched, cursed and treated badly by her employer Cheung Lai Ling, saying if this were the case, she should have escaped as she had many opportunities to do so.

Lee said what happened to the maid on the mainland was outside her jurisdiction.

“Item 5 of the General Remarks of the Immigration rules states that conditions for foreign domestic helpers apply only while the FDH is in Hong Kong,” Lee said, reading an excerpt from Item 5 the Immigration’s General Remarks website.

“It’s not illegal for Ms Cheung to bring Ms Chua to the mainland if there was mutual consent between the employer and the maid. There was no evidence that Ms Chua was taken to the mainland without her consent, so no breach of Immigration rules,” Lee said.

Chua ended up paying Cheung $4,644.02 for the Shenzhen company director’s costs in the three-day trial hearing, originally calendared for four days.

Lee ordered the Filipina to pay $6,067.80, or 60% of Cheung’s more than $9,000 in costs.

But the presiding officer told Cheung to pay back $1,797.75 deducted from Chua’s final pay by employment agent Alice Tang for the maid’s plane ticket to Bacolod that Tang had booked, as well as her $100 travel allowance.

Lee rejected Chua’s claim for arrears in wages from Dec 1 to 16 last year based on an agreement she signed with Cheung on Nov 20 moving back her last day of service to Dec 16, after the employer allegedly told her to leave on Nov 30.

The presiding officer dismissed the two parties’ Nov 20 agreement, citing an Immigration rule that supplementary agreements reached by the employer and her employee outside their employment contract are void.

Instead, Lee accepted a one month’s notice of resignation that Chua signed on Nov 16, 2016 and told her to pay Cheung for not finishing the Dec 1-16 part of her notice period.

The Filipina went to the tribunal claiming payment for the remaining 22 months of her two-year contract, insisting that she was unduly terminated by the employer and forced to sign the resignation notice. She was also claiming $900 in costs including MTR fare.

But confusion and inconsistencies in her statement and her mother Donna Mae’s evidence in court led Lee to reject their evidence, calling them “unreliable witnesses”.

In contrast, Lee accepted the evidence given by Cheung and her witnesses – her mainlander friend Mr Tang and driver Mr Lam.

The tribunal heard that Chua was placed with Cheung by Tang, owner of the now defunct Blessings Employment Agency, in July 2016, but she went back to the Philippines to wait for her work visa. She began working for Cheung on Oct 24 and was taken to Shenzhen on a tourist visa by her employer on Oct 29.

During her stay in Shenzhen she said she was made to work in Cheung’s house and then was made to work as cleaner in her office until the evening. Aside from the long work hours, she said she was given food that had been in the refrigerator for two weeks.

On Nov 14, Cheung allegedly punched Chua in the upper arm for a mistake in her work. The next day she was made to work the whole day without rest and food until she fell ill in the evening. The next morning she was told to pack up her things and was driven to the border bus terminal where she took a ride back to Hong Kong.

She stayed with her mother for four days in Tsing Yi and after a Nov 20 meeting with Cheung and Tang, the maid moved back to the employer’s flat in Hong Kong to finish her service until Dec 16.

But at 3am on Nov 30 Chua left Cheung’s house after Tang arrived at midnight to let her sign the agreement saying she was being released that day. Tang also booked her an air ticket to Bacolod.

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