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Tribunal rejects claim for compensation by DH who testified via video link

23 September 2019

By Vir B. Lumicao

The landmark Tribunal hearing was held in a technology courtroom in West Kowloon court

A former domestic helper who won a landmark approval to testify via video link from the Philippines failed in her bid to sue her employer for compensation of around $85,000 after the labor tribunal found that she was sacked for cause.

Presiding Officer W.Y. Ho, sitting as a trial judge, said in her judgment on Sept 23 that she was convinced that Joenalyn Mallorca was sacked for sexually abusing her employer’s daughter who was only seven years old at the time.

Ho gave her verdict after a three-day trial last week in which both Mallorca and her former employer, Mrs Ng, gave evidence via video link in West Kowloon Court, outfitted as a technology court.
The employer had accused Mallorca of inserting her finger in the genitals of her daughter on at least two occasions while washing the girl, causing injury and inflammation. Ng also accused Mallorca of adding a substance to the shampoo that irritated the girl’s scalp.

Ho said she believed Ng’s claim that the girl’s pubic area was inflamed and that she had a painful urination due to the maid’s acts and was consistent with the girl’s complaints.

This was the reason for Mallorca’s summary dismissal, the judge ruled.
The judge also said the matter involving child abuse and neglect was outside of the labor issues at hand but she planned to refer the matter to relevant authorities, suggesting a police investigation.

Mallorca had sought compensation after Ng terminated her work contract on Sept 22, 2016, just three months after she started working for the family. The helper alleged the employer had slapped and then dismissed her for no reason.

Mallorca initially filed only a claim for unpaid wages, a month’s salary in lieu of notice and return air fare against Ng at the Tribunal. Ng, who agreed to pay her arrears in wages totaling $1,824.37 and plane fare of $1,300.
The Filipina returned home in December 2016 to look after her mother, who was sick of lung cancer, and her two children without settling four other items totaling $8,707.33, including wages in lieu.

She apparently added a claim for compensation when her case went up for trial. According to Shiella Estrada, president of a labor union who was allowed to represent Mallorca in court, the total claim was around $85,000.

A second hearing was set for Feb 2, 2017, but Mallorca could not return because no one would take care of her mother, so, she authorized the NGO, Help for Helpers, to represent her.

Mallorca applied to give evidence via video link but Tribunal Presiding Officer David Chum dismissed her application on Mar 30, 2017, and struck off her claims against Ng without a trial.

With help from another NGO, Justice Without Borders, solicitors firm Dechert took Mallorca’s case to the High Court, which reversed Chum’s ruling and ordered the use of video link. High Court Justice Bebe Pui Ying Chu also ordered the Tribunal to restore Mallorca’s claims.

The maid was later allowed by the Tribunal to be represented in the trial by Estrada.

In Monday’s verdict, Judge Ho struck out Mallorca’s claim for one month’s wage in lieu of notice, a $300 claim for taxi fare from the Ninoy Aquino International Airport to her home in Laguna, and the rest of her claims, without stating their amount.

In all, Ho awarded only a total of $970 as Ng’s compensation to Mallorca. No order was made as to cost, as Ng did not apply for it.

The High Court’s decision to allow Mallorca to give evidence via video-conferencing was seen as setting a precedent for other migrant workers who have returned home to pursue cases against their former employers in Hong Kong.

While testimony via video link is used at the District Court and the High Court, Mallorca’s case was the first ever to be allowed in the Labour Tribunal.
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