MATHIAS JULIANA v. MOHINI M. DASWANI

HCLA000034/1988

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 34/88

(CLAIMS NO. TST-829/88)

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BETWEEN
MATHIAS JULIANA Claimant(s)/
Applicant
AND
MOHINI M. DASWANI Defendant(s)/
Respondent

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Coram: Deputy Judge Bokhary Q.C. in Court

Date of Hearing: 22 November 1988

Date of Delivery of Judgment: 22 November 1988

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J U D G M E N T

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1. The Claimant (who is the Appellant before me) used to work for the Defendant as a domestic helper. Such employment came to an endon July 8 this year. There was a dispute as to how this came about. The Claimant said that on that day the Defendant (who is theRespondent before me) dismissed her without notice, payment in lieu, or cause. The Defendant said that the Claimant simply walkedout on the job on that day. Even more significantly, there was this dispute: The Claimant said that she had not been paid wages sincethe latter part of 1987. The Defendant denied this, and said that the Claimant had been paid all the wages due to her.

2. On August 10, this year, the Claimant commenced proceedings against Defendant in the Labour Tribunal. She claimed: –

(1) $2,300.00 as one month’s wages in lieu of notice;

(2) $10,453.50 as arrears of wages from August 10, 1987, to July 8, 1988;

(3) $766.70 in respect of statutory paid holidays;

(4) $268.00 in respect of statutory annual leave;

(5) $18.00 in respect of medical expenses;

(6) $100.00 in respect of travelling expenses;

(7) $711.20 in respect of rest days; and

(8) $3,330.00 in respect of air passage back to Bombay.

3. The learned Presiding Officer, Z.E. Li, Esq. believed the Claimant when she said that she had been summarily dismissed; but he didnot believe her on what she said about being owed arrears of wages. Here, he accepted instead the evidence of the Defendant.

4. On September 7, this year, the Presiding Officer awarded the Claimant: –

(1) $2,300.00 as one month’s wages in lieu of notice;

(2) $268.00 in respect of statutory annual leave;

(3) $460.00 in respect of statutory paid holidays;

(4) $345.00 in respect of visa fees;

(5) $100.00 by way of travelling allowance; and

(6) an airline ticket to Bombay (which had been tendered by the Defendant prior to the making of the award).

On September 20, this year, the Claimant obtained, from the learned Registrar, an extention of time to lodge an application for leaveto appeal. On the following day, she lodged an application for leave to appeal on a point of law. The ground of appeal as expressedin the Application (which was made in Form 14) are expressed thus: –

“I am not satisfied with the result of the hearing of my case regarding my complaints against my employer, Mohini M. Daswani, becauseI think it is very unfair on my part. My employer was not answering during the hearing, instead the son kept on talking wrong answers,etc. The son is not staying or living in my employer’s house, so he doesn’t know anything happened between me and my employer.”

Leave to appeal was granted by His Honour Judge Cruden, sitting as a Deputy Judge of the High Court, on October 25, this year. Whenthe Claimant appeared before me this morning, she took a number of points, which she took with ability and great courtesy. First,she asked me to call upon the Defendant and the Defendant’s son to swear on the Hindu Holy Book and Picture to tell the whole truth.The Claimant offered to take a similar oath.

5. The Claimant also asked, rhetorically, why the Defendant had at one stage offered her $10,000.00 unless she knew that there werearrears of wages owing.

6. Taking these two points first, as I have already endeavoured to explain to the Claimant, I am unable to accede to the request inregard to the taking of oaths and statements thereunder because this Court is not empowered, in an appeal from a Labour Tribunal,to receive evidence. Section 35 (2) (a) (ii) of the Labour Tribunal Ordinance, Cap. 25 so provides in terms.

7. As to the offer of $10,000.00, as I have already endeavoured to explain to Claimant, there can be many reasons why people may offermore than what they utimately assert is due from them when they get before a court or tribunal. It may be because they realize thatthey do in fact owe more money than they assert. On the hand, it may be that they are prepared to pay ‘over the odds’, so to speak,in order to avoid bother.

8. In any event, as I have endeavoured to explain to the Claimant, this would go to attacking a finding of fact made by the PresidingOfficer, and I am not empowered in appeals of this sort to reverse or vary any determination made by the Labour Tribunal on questionsof fact. Section 35 (2) (b) (i) of the Laobur Tribunal Ordinance says this in terms.

9. Two other points which were taken by the Claimant this morning were these: First of all, she asked rhetorically whether it wouldbe right for the Tribunal to have barred her from claiming simply because she made her claim late. Of course it would not be rightto bar her for making a claim simply because it was made late. But, having read the Presiding Officer’s judgment carefully, I seethat he did not take the view that the Claimant was in any way barred for not having complained earlier. He did however, take intoaccount the fact that she did not complain for a long time, and he regarded that as a factor to be taken to account in deciding whetheror not to believe her. The Claimant points out that she only claimed when she was dismissed summarily. That is also a factor thatcan be taken into account; but it is a factor which must have been in the mind of the Presiding Officer. Even, therefore, if it wereopen to me to entertain an appeal on facts, I would find difficulty in reversing a finding of fact on this ground. But, of course,the reality is that I am not entitled to entertain an appeal on facts at all.

10. The second of these two points taken by the Claimant is related to the first, and emphasises the fact that she had more reason forcomplaining when she was dismissed than before. But what I have said about the first point goes for this point as well.

11. In all the circumstances, there is no basis on which I am able to interfere with the award made below. The appeal must thereforebe dismissed. But before I dismiss it, I should mention that the Claimant (who seems to have sustained a fall while she was employedby the Defendant) has raised the question of employee’s compensation. That question was not before the Labour Tribunal; and it isnot before me today. But there is nothing I can see to prevent her from making a claim (in the appropriate forum) if there is, shefeels, a basis for doing so. It would not be right for me to express a view as to whether there is or is not a basis for such a claim.I merely make the point that the Claimant is entitled to consider her position in regard to such claim. I expect that the LabourDepartment would be prepared to give her some advice on the possibility of such claim. Having said that, I must now do what I haveno choice but to do, which is to dismiss the appeal; and I dismiss it.

(K. Bokhary)
Deputy Judge of High Court

Representation:

Applicant and Respondant in person.