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Filing of claims: some usual questions

23 April 2018

While attending to fellow migrants seeking assistance at the Mission, many questions in their mind get in the way of pursuing cases. Their doubts cause apprehensions because most want an assurance that they can still stay in Hong Kong or leave and come back. They want to know if they can transfer employment, or if they are committing any offence if they pursue a case, or even if they cancel a case. This is very much understandable because it concerns the future of their family back home – the one thing that is most important to them.
What are these questions?

If I file claims against my employer in the Labour Department, will I still be allowed to work in Hong Kong?
The Labour Department attends to disputes between you and your employer. Meanwhile, the Immigration Department deals with your permission to stay in Hong Kong (visa) and the status of your stay.
Labour cases are not criminal in nature and they cannot be used as a ground to prevent you from staying or returning to Hong Kong even if it was you who initiated the termination of contract. In fact, some cases can be considered as “constructive termination” like when employers are deemed to have cut the contract through a violation of its provisions or making it hard for you to comply with your obligations.
If you win your claim for wage in lieu of notice for underpayment, or assault is the reason why you were compelled to terminate the contract, these are circumstances that may help convince the immigration officer about the reasonableness of your act.
So remember to claim all that is due you according to the contract. You may ask assistance from service providers like the Mission (2522-8264) to identify them.
But even if for some reason, you failed to explain well your grounds and you did not get what you are claiming at the Labour Department/Tribunal, you still did not commit a crime to make the Immigration Department prevent you from getting a new employment and come back to Hong Kong.
There are just some conditions that may be considered because the status of a foreign domestic worker (FDW) is bound by the contract that is restricted by several Immigration policies, one of which is the “New Conditions of Stay” (1987) or the so-called Two-week Rule. Employment status, length of stay, requirements to exit Hong Kong in-between contracts and related exceptional cases are bound by this rule.

Do I need a lawyer in the Labour Tribunal?
The Labour Tribunal (LT) was established to quickly resolve employer-employee disputes that were not resolved at the level of the Labour Relations Division (LRD). The LRD will refer the disputes to either Minor Employment Claims Adjudication Board (MECAB) or LT, depending on the amount of claims.
Though it has the semblance of a formal court as far as the setting is concerned, it is more of an informal court in the sense that the only allowed parties in the tribunal are the Claimant, the Respondent and the Presiding Officer (acting like a judge in a formal court). Lawyers are not allowed to represent the Claimant nor the Respondent.
But submission of statements is required from both the Claimant (including his/her monetary claims and its computation) and the Respondent. Also, the questioning is allowed (so-called cross examination in formal courts), depending on the decision of the Presiding Officer, by either the Claimant or the Respondent in relation to the statements submitted to the Tribunal. Each item of the claims can be disputed.
The important thing here is because the Tribunal does not allow the presence of lawyers, then the FDW claimant must seek the assistance of institutions like the Mission to assist them on how to write their statement and prepare them for the hearing.

If I file claims against my employer, will they call the police to arrest me?
A labour claim is a civil one, meaning it is not criminal in nature. That is why it is being heard or attended to in a conciliation manner and not in the Court of Law. Even if the employer files a counter claim, it is done at the LRD and not the police. Police cases are criminal in nature while a labour claim is by and large a civil case/claim. The employer cannot use the employment contract provisions to file a swindling case, for example, which is criminal in nature. So, police intervention is just to prevent any untoward incident that might aggravate the situation and lead to a criminal one like physical assault.
But all the contract-related disputes will be resolved at either the LRD or MECAB or Labour Tribunal, not in a regular court. If you are threatened by the employer or by the placement agency by calling the police, ask why they were called and what the complaints are. If it is a crime they are accusing you of, say nothing to the police and let the one that called the police establish their complaint. If you are being arrested, you have the right to remain silent because whatever you say can be used against you. Consult a lawyer or service providers like the Mission.

If I file claims against my employer, could they file counter charges?
Either a FDW or employer can file claims or counter-claims against the other party. No one can prevent that as long as the Presiding Officer (PO) allows it. Of course there are cases where the PO might consider the claim as nuisance but it is totally dependent on the PO. The Respondent can examine each claim and dispute it especially if there is no proof. If the FDW-claimant does not question the counter claim and just kept quiet about it, the PO might take it as an admission that the counter claim is true and correct. If it is not true and was only filed to harass you, contest each item in the counter claim with sufficient evidence.
It there are any unclear explanations above, please contact us at the Mission office (25228264) or through The Sun.

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