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High Court allows sacked Filipina DH to testify via video

02 August 2018

The High Court has opened the door to possibly hundreds of migrant workers’ claims being heard outside of Hong Kong via video link, in a landmark ruling laid down on Jul 27.

Justice Bebe Pui Ying Chu of the Court of First Instance overruled the Labour Tribunal’s decision rejecting the application of Filipina domestic helper Joenalyn D. Mallorca to move her case to the technology court so she can give evidence from the Philippines.

Mallorca, who is seeking compensation totaling more than $8,000 from her employer Ng Mei Shuen, applied to give evidence via video conferencing because she had to go back home to take care of her mother who was suffering from lung cancer.

The landmmark ruling opens the cort’s doors to OFWs who have had to go home to the Philippines while their cases were still pending
But the Tribunal’s Presiding Officer David Chum dismissed the helper’s application on Mar 30, 2017, and struck off her claims against her employer without a trial. Law office Dechert took Mallorca’s case to the High Court.

In her decision, Justice Chu said the presiding officer appeared to have focused only on the reasons given by Mallorca for not being able to attend the hearing and Ng’s indication of
objection to the use of video link.

“(Chum) did not have regard to the fact that C (Mallorca) was entitled to bring proceedings in this jurisdiction to protect her civil rights, and to the crucial nature of C’s evidence as to whether there were grounds for her summary dismissal,” Chu said.

She said that “without being allowed to give evidence or be present through video link, it could mean that C would be deprived of a fair and public hearing, or the chance to proceed with her claim”.

The judge ordered the Tribunal to restore Mallorca’s claims and hear her evidence via video link.

Ng terminated Mallorca’s work contract on Sept 22, 2016, just three months after the helper started working for her. The Filipina claimed the employer had slapped, then fired her for no reason.

Mallorca filed a claim against Ng at the Tribunal and the employer paid her arrears in wages totaling $1,824.37 and plane fare of $1,300. She returned to the Philippines in December 2016 without settling four other items totaling $8,707.33, including wages in lieu of notice..

The High Court’s decision to allow the helper to give evidence via video-conferencing would set a precedent for other foreign helpers who have returned home to pursue cases against their former employers in Hong Kong.

Hong Kong’s courts allow applications for video link when a party in the trial cannot return to the city. The system is used at the District Court and the High Court. Mallorca’s request is the first ever at the Labour Tribunal.

“This decision is a key victory for migrant workers in Hong Kong,” executive director Douglas MacLean of Justice Without Borders, a regional charity supporting cross-border access to compensation for migrant workers., said in a press release.

“For far too long, going home has meant going without. The court’s judgment rightly protects access to justice for many migrant workers who cannot return to Hong Kong to pursue their claims,” MacLean said.

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