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Pinay wins ‘suitable accommodation’ test case

17 July 2017

By Daisy CL Mandap

Mariel Tadalan wins Labor case against
employer who made her sleep in the kitchen,
fed leftovers and made her sleep only 4 hours each night.
A Filipina has won the right to be paid a month’s salary in lieu of notice despite walking out on her employers. That’s because they made her sleep in the worst possible places – including their terrace on a wintry night – fed her leftovers, and gave her only four hours’ rest each day.

Mariel P. Tadalan, 35, was awarded $5,568 at the end of a four-hour negotiation with her employer before an officer of the Minor Employment Claims Adjudication Board on July 7. The amount represented Tadalan’s claim for one month’s salary in lieu of notice, return air ticket and food allowance.

It was the second meeting between her and her employer, who at first denied any liability, saying it was the Filipina who walked out on her job on Apr. 4.

But the officer dismissed this argument, saying that Tadalan could have left without notice from the time the employer and his wife made the maid sleep in their terrace shortly after arriving to work for them early this year.

Tadalan had confessed to not knowing about this so-called “constructive termination” clause in the employment ordinance that would have allowed her to leave her job without serving a month’s notice on her employer.

She didn’t know that once her employer failed to give her “suitable accommodation” or did other acts that violated the terms of their contract, she could walk out the door and still be entitled to a month’s pay. She said everyone she had spoken with told her she needed to pay her employer the equivalent of her salary for a month if she broke their contract.

That is, until she decided to leave her job and sought help from the Mission for Migrant Workers.

What also helped Tadalan win her case was her prodigious work at documenting the abuse she suffered during the two months that she worked for her employers. She took pictures of the cramped spaces where she was made to sleep, the shards from the cup and plate thrown at her by her female employer, and the mushy slop she was fed.

There was also a picture of her bandaged forehead, taken after she fainted from lack of sleep and overwork, and hit her head on a faucet, resulting in a wound that required four stitches. She said it took her employer three hours to decide to take her to the hospital, and only because he was already on his way to work.

Confronted with the photos, her employer accused Tadalan of plotting her escape and setting them up to get compensation, but the MECAB officer brushed the claim aside.

Asked why Tadalan was allowed only four hours of sleep, the employer said it was because the helper did not do her work properly during the day, an excuse that did not impress the officer either.

Tadalan was no stranger to hard work. She spent two years working in Dubai, then moved to Qatar where she managed to stay for nearly five years, with hardly any day off.

She had thought that moving to Hong Kong would allow her more time, freedom and comfort. But she was wrong.

At her employers’ former residence, Tadalan said there was a room intended for her use, but she was told to sleep either in the terrace, or close to the main door in the living room. When her employers moved to their new house in Ma On Shan, Tadalan was given as sleeping space a tiny corner in the kitchen, wedged between a washing machine and the cold tiled wall.

But this alone would not have entitled her to break her contract at will.

According to the High Court in a recent case, a space in the kitchen could be deemed “suitable accommodation” under the terms of a domestic worker’s contract. In a more recent ruling at the Eastern magistracy, even a makeshift structure on the terrace, air-conditioned but no bigger than a doghouse, also qualified as such.

But the Mission is appealing both decisions, determined not to let them set a precedent.

In its study released earlier this year, the Mission found that 3 out of 5 foreign domestic workers are not given their own room, and around 500 could be sleeping in toilets.
Tadalan documented her ordeal through
pictures (left, top and above) she sent to the agency
that placed her with the family.

Labor Attache Jalilo dela Torre is also doing his part to end the malpractice. He says he and his Indonesian counterpart are working on a plan to make employers and employment agencies disclose the exact place a domestic worker will be made to sleep. The information is then passed on to the worker, who will have the option of backing out or continuing with the employment.

It will not be the first time such a move is taken by governments that deploy domestic workers to Hong Kong. According to the Mission report, Thailand is already imposing this requirement as part of its efforts to promote the well-being of its workers in the territory.
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