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Filipina in landmark video testimony wins bid to appeal dismissal of her labour claim

20 April 2020

By Daisy CL Mandap

Judge says the employer failed to prove the allegation of child abuse against the Filipina helper

A former domestic helper who last year won the right to testify via video link from the Philippines in her labour claim against her former employer, has again scored court victory.

This time, Joenalyn D. Mallorca succeeded in getting the High Court to grant her leave to appeal the Labour Tribunal’s decision rejecting her claim of around $85,000 from her former employer, Ng Mei Shun, representing one month’s salary in lieu of notice, plus damages.

The Tribunal’s acting principal presiding officer Ho Wai Yang had dismissed Mallorca’s claims on Sept 23 last year, saying the helper was sacked for a cause.

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Ho said she was convinced that Mallorca had sexually “hurt” the employer’s daughter, who was only seven years old at the time the helper was dismissed on Sept 22, 2016.

But in her decision handed down on Apr 16, High Court Judge Bebe Pui Ying Chu said Mallorca had cited three reasonable grounds in her application, including the failure of tribunal officer Ho to apply the correct test in assessing the credibility of Ng’s evidence about the alleged “hurting.”

Mallorca’s counsel, Kareena Teh, had argued that Ho was wrong in concluding that Ng did not fabricate the hurting allegation because there was no mention of this at all in the defendant’s first statement to the tribunal on Oct 31, 2016.

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The first time the said allegation was made was in a subsequent statement made by a supposed witness, Ho Wing Kei two years later, which Teh said was hearsay. This was followed by two separate statements from Ng and her daughter in which both mentioned the alleged hurting incident.

Teh also mentioned that Ng never produced a medical certificate to prove her allegation, and only said that she and her daughter had gone to a private doctor who gave the girl some medication. 

Ng also claimed she and her daughter had gone to a government doctor twice, but again showed no proof to back this up.
Neither did Ng make a report to the police despite the daughter’s statement that she had complained to her mother immediately after the alleged assault.

In addition, Teh pointed out that there were inconsistencies between the statements made by Ng and her daughter, who was already 10 when she gave evidence before the Tribunal last year.

Upholding the grounds cited as arguable, Judge Chu said “the hurting allegation was a serious allegation, and the burden of proof was on (Ng) to prove the allegation.”

The judge also ruled that the tribunal officer was wrong in finding that Mallorca had waived her right to being paid a month’s salary in lieu of notice based on a document that merely stated the employer’s intention to compensate the helper, but with no amount mentioned.

The third ground upheld by the judge was that the presiding officer was wrong in simply dismissing the helper’s claim for damages for breach of trust for $80,107.56, without giving any reasons.

However, the judge dismissed the appellant’s claim that the presiding officer was wrong in ordering that interest be paid on the $970 awarded to her for her food, travelling allowance and air ticket only from the date of the award until full payment is made.

Chu said Mallorca had failed to ask for “pre-judgment interest” in her amended claim form, and her counsel failed to claim the same in her closing submissions before the tribunal.

The judge ordered that claims as to costs will depend on whether the appeal is successful.
Mallorca testified via video link at West Kowloon court, the first such set-up for a labour claim 

During the three-day trial before Ho last year, both Mallorca and Ng testified via video link at West Kowloon magistracy, outfitted as a technology court.

After finding that the Filipina was dismissed because of the alleged hurting of Ng’s daughter, the presiding officer said she was going to refer the case to the police for further investigation.

In her initial claim, Mallorca only asked for unpaid wages, a month’s salary in lieu of notice and return air fare against Ng. In turn, Ng offered to pay her arrears in wages totaling $1,824.37 and plane fare of $1,300.

Just before the case went up for trial at the Tribunal, Mallorca amended her claim to include damages, making a total of around $85,000.

But after hearing the case, Ho only awarded $970 to Mallorca for her plane fare, travelling and food allowance. The presiding officer dismissed her claim for damages, wage in lieu, $300 taxi fare from the Manila airport to her home in Laguna, and others.

In December 2016, just before her claim was due to be heard at the Tribunal, Mallorca returned to the Philippines to look after her sick mother and her two children.

A second hearing was set for Feb. 2, 2017, but Mallorca could not return to Hong Kong because no one would take care of her mother, so she authorized the non-government organization, 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.

Judge Chu, which heard the case, also ordered the Tribunal to restore Mallorca’s claims.

The maid was later allowed by the Tribunal to be represented in the trial by Shiella Estrada, president of a domestic workers’ labour union, as no lawyers are allowed to appear for parties in a labour claim.

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