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Appeal court rejects labour tribunal's finding of child abuse vs FDH

04 November 2020

By Daisy CL Mandap 

A retrial before another presiding officer was ordered by the appeal judge

The High Court has ordered a retrial of the labour claim filed by a Filipina domestic worker against her employer who had accused her of molesting her nine-year-old female ward more than four years ago.

In a decision handed down on Nov 3, Justice Bebe Pui Ying Chu granted the appeal filed by Joenalyn D. Mallorca against the Labour Tribunal’s decision dismissing her claim for wages in lieu of notice, annual leave pay, and damages for breach of trust against her former employer, Ng Mei Shuen.

Justice Chu, who acted as a lone appeal court judge, said the tribunal’s acting presiding officer Ho Wai Yan had committed an error in law in finding that the “hurting” or molestation charge against Mallorca was true, as there was no evidence to support that conclusion.

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Ho dismissed Mallorca’s claim on Sept 23, 2019, saying that the claimant’s conduct in “hurting” the employer’s daughter justified her summary dismissal. Mallorca was awarded only her statutory claim of $970 with interest, but failed to win damages and costs.

Ho agreed with the employer’s claim that Mallorca had inserted her finger in the genitals of her young ward on at least two occasions while bathing the girl, causing injury and inflammation.

In overruling the tribunal’s decision, Judge Chu pointed out that the hurting claim was first made by Ng’s daughter in a statement made two years after the alleged incident, while the employer herself alleged it for the first time in a submission to the tribunal only in September last year, or three years since.

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Further, the judge said evidence showed the employer did not do anything to stop the alleged abuse by the helper, which she claimed was reported to her by her daughter a couple of times during the 3 ½ months that Mallorca had worked for them.

What was clear, said the judge, was that Ng did not even ask Mallorca to stop bathing her daughter, and did not make any report to the police even though the alleged misconduct amounted to sexual abuse of the child. Neither did Ng contact any social worker or her daughter’s teachers.

Judge Chu also said Ho’s finding that Mallorca had committed the hurting act on multiple occasions was not supported by the girl’s own statements.

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Based on the evidence, the judge said there were at least four inconsistencies in the statements made by Ng and her daughter: the number of times the alleged molestation happened, the extent of the alleged “insertion” by the helper’s finger into the girl’s private parts, the extent of the alleged injuries, and the doctor they alleged to have consulted.

“Having considered all the above, I am of the view that there was no evidence to support Presiding Officer’s conclusion that C’s (Mallorca) conduct in the Hurting Allegation was a serious misconduct which justified summary dismissal.  Such conclusion was based on the Presiding Officer’s misunderstanding of the evidence, and/or finding of facts, or inference from the facts, which were perverse or irrational.  In my view, such conclusion was an error of law,” said the judge.

The appeal judge says there was no evidence that the FDW had molested the girl

The judge also upheld all the three other grounds for the appeal raised by Mallorca through her counsel, Kareena Teh, including Ng’s act of waiving any future claims against the helper when she signed a settlement agreement with her on Sept 22, 2016, in the presence of police officers.

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The presiding officer had dismissed the agreement as no more than a letter stating what the employer intended to do at the time, but the judge upheld Teh’s argument that the tribunal failed to consider that this was actually an intention to compensate the helper.

Chu also agreed with the claimant that the tribunal has the authority to award costs and damages in the case.

Mallorca had sought compensation after Ng terminated her work contract on Sept 22, 2016, just over 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 only offered 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 with her employer, totaling $8,707.33, including wages in lieu.

She later amended her claim to include damages for wrongful dismissal, amounting to over $85,000.

For the second hearing set for Feb 2, 2017, Mallorca could not return because no one would take care of her mother, so, she authorized HELP for Domestic Workers 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. Judge Chu also ordered the Tribunal to restore Mallorca’s claims.

The case generated a lot of interest at the time as it was the first time that a FDW was allowed to testify via video link from the Philippines in a compensation claim before the Labour Tribunal.

On April 20 this year, Judge Chu also granted Mallorca’s leave to appeal her case against the tribunal’s decision.

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