By Daisy CL
Mandap
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| 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.
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.
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.
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| 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.
