By Daisy CL Mandap
Filipina domestic worker Baby Jane Allas, whose story about her being fired after she was diagnosed with stage 3 cervical cancer has gone viral, started receiving medical treatment at Adventist Hospital in Mid-Levels on Mar. 14.
An online appeal for donation made on her behalf by her sister’s employer, Jessica Cutrera, had already generated a total of $803,370 by the time of her admission, far exceeding the maximum target of $650,000 for the fund drive set up through GoGetFunding.
According to Consul Paul Saret, head of the Consulate’s assistance to nationals section, Allas said she chose to go to the private hospital known to cater to Hong Kong’s elite as she was offered heavily subsidized treatment and care from a prominent oncologist .
A day earlier, Saret accompanied by assistant labor attaché Antonio Villafuerte, went with Allas and her sister Mary Ann to the Labour Department for a conciliation meeting with her employer.
Saret said the employer did not show up, but two lawyers representing her came and offered to settle all of Allas’ labor claims, but without prejudice to her pursuing compensation claims for her alleged unlawful dismissal.
Unfortunately, said Saret, a pro bono solicitor who is representing Allas did not attend the meeting, knowing that lawyers are not normally allowed to attend labor conciliations. Thus, the offered settlement by the employer’s lawyers could not be accepted.
“Baby Jane will now have to wait until after she has recovered from her treatment before she goes to the Labor Department again,” he said.
Her plan to file compensation claims against her employer at the Labour Tribunal for her alleged wrongful dismissal and at the Equal Opportunities Commission for supposed disability discrimination will also have to wait until then.
Saret said the Consulate was alerted to Allas’ case after Cutrera put up the GoGetFunding campaign on her behalf, saying the Filipina was wrongfully fired by her employer because of her ailment. (https://gogetfunding.com/fired-for-having-cancer-urgent-cancer-care-for-baby-jane-allas/ ?fbclid=IwAR2 cOcj1TWpi4AJB8 weaqLc9xC5_eC3vcs Orbo 7V3gYmfRUubP8 LYIAVVdc#)
According to welfare officer Virsie Tamayao, Allas also contacted them for help in pursuing her treatment.
“Doon siya tinitingnan sa Tuen Mun Hospital kasi na-confine na siya doon ng dalawang beses kaya doon ang follow-up treatment niya,” said Tamayao.
The patient had reportedly asked them to help request that her treatment be continued at Queen Mary Hospital which was nearer to where she was staying, but when this was declined, agreed to return to Tuen Mun Hospital.
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Tamayao said the hospital raised no questions about Allas being qualified to continue receiving treatment despite the termination of her work contract. However, before the scheduled date for her first chemotherapy session in Tuen Mun, Allas reportedly informed them about an offer from a specialist in Adventist to get her treated there.
In Cutrera’s solicitation post, Allas was described as a single mother of five children who came to work in Hong Kong in November 2017, and was diagnosed with cervical cancer at Tuen Mun Hospital on Jan. 20 this year.
Cutrera said Allas was recommended for sick leave between Jan 25 to Feb. 14, then Feb 16-18, during which her cancer was confirmed to be an advanced stage 3 cervical adenocarcinoma.
But on Feb. 17, while she was supposed to be on sick leave, her employer gave her a termination letter, stating that her last date of employment was Feb. 19.
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The letter reportedly stated:
Your last working day was 24 January 2019…
Reason for termination (if any): Diagnosed with cervical cancer…
Given your medical conditions, I am no longer able to continue your employment effective from 19 February 2019.
Wish you good health.
Cutrera said that because Allas’ employer had wrongfully terminated their contract, the helper lost the right to remain in Hong Kong and avail of free public health care.
But, “she cannot stay in Hong Kong and fight her claims without cancer care,” said Cutrera. “We have obtained support to pursue an extended visa while she fights her claim, but this visa will not allow her to access government paid care.”
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Asked to assess the legality of Allas’ claim for wrongful dismissal based on the records available to them, Saret said it was difficult to tell.
“It seems the question here is whether the employer could have issued a month’s notice of termination while Baby Jane was still on sick leave,” he said. “It also did not look good that the reason given for the termination was her being sick of cancer.”
Hong Kong’s Labour Ordinance states, “An employee can accumulate paid sickness days after having been employed under a continuous contract. Paid sickness days are accumulated at the rate of two paid sickness days for each completed month of the employee’s employment during the first 12 months, and four paid sickness days for each completed month of employment thereafter. Paid sickness days can be accumulated throughout the whole employment period, but shall not exceed 120 days at any one time”.
The Ordinance also states that an employee cannot be dismissed while on paid sick leave. Any employer who violates the law is liable to pay a fine of up to $100,000.
Clearly, the issue to be determined is whether Allas was still entitled to paid sick leave on Feb. 19, when her employer dismissed her.
The employer, through her lawyers, is said to insist on fighting off Allas’ claims. The worker, on the other hand, is equally determined to pursue her claim of wrongful dismissal.
It will now be up to the courts to determine who is on the right, in a decision that could impact many similar cases, especially in light of a noticeable spike in the number of migrant domestic workers getting sick while working in Hong Kong.
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