Mallorca Joenalyn Domingo v Ng Mei Shuen
Court of First Instance
Labour Tribunal Appeal No 8 of 2017
Bebe Chu J
26 July 2018

Civil procedure - striking out - Labour Tribunal - order striking out claim immediately after dismissing applications for giving evidence via video conferencing facilities and for representation by office bearer of trade union - whether Tribunal plainly wrong in doing so - Labour Tribunal Ordinance (Cap.25) s.20A

Courts and judicial system - Labour Tribunal - transfer of proceedings to Technology Court - refusal by Tribunal to transfer proceedings for foreign domestic helper claimant to give evidence from overseas via video conferencing facilities - whether failure to consider all matters under para.5 of Practice Direction 29 - requirement to balance prejudice as between parties

Courts and judicial system - Labour Tribunal - right of audience - application for representation by lay office bearer of trade union - factors to be considered in exercising discretion - Labour Tribunal Ordinance (Cap.25) s.23

Civil evidence - witness - testimony - video conferencing - Labour Tribunal

In October 2016, C, a Filipina foreign domestic helper, lodged a claim in the Labour Tribunal against her former employer, D, for allegedly slapping her and summarily dismissing her without proper grounds, seeking, inter alia, wages in lieu of notice, arrears of wages and damages. C's unsettled claims were fixed for hearing in February 2017. On 21 November 2016, C requested an earlier hearing as she was not permitted to work to support herself in the interim. D objected and the Presiding Officer (PO) refused C's application without giving reasons. On 8 December 2016, C returned to the Philippines. Prior to the hearing, C applied for the proceedings to be transferred to the Technology Court and to give evidence in the Philippines via video conferencing facilities (the VCF Application), stating that, given her husband's limited income and long hours, she could not afford to return to Hong Kong and the time away from taking care of her two young children and her mother who had lung cancer. At the hearing, D was absent while T, the organising secretary of a trade union (FADWU), appeared purportedly to represent C (the Representation Application). The Presiding Officer granted T "temporary leave" to represent C given the " very exceptional circumstances ", ie C's claim would otherwise be dismissed due to her absence. On T's application, the VCF Application was adjourned. T was reminded that if the VCF Application were refused and C failed to appear, her claim could be dismissed under s.20A of the Labor Tribunal Ordinance (Cap.25). On the return date, the PO found there were no exceptional circumstances for T to represent C and T, having paralegal training and experience in handling labor disputes, had an advantage over D. The PO further held that C had shown no valid reason to testify via video link, because it was only inconvenient for her to testify in person and her family problems could be resolved by special arrangements; and D objected to the use of VCF and, to ignore her views, would not promote the fair disposal of the proceedings (the Decision). He therefore dismissed both Applications and struck out C's unsettled claims. C appealed. Under s.23(1)(e) of the Ordinance, with leave of the Tribunal, an office bearer of a registered trade union or of an association of employers with written authorisation by the claimant had a right of audience.

Held, allowing C's appeal and ordering her claims to be restored with the VCF and Representation Applications to be remitted to the Labor Tribunal for hearing before a different presiding officer, that:

(1) In deciding whether the proceedings should be conducted in the Technology Court pursuant to Practice Direction 29 (PD29), the court must take into account all material circumstances including the balance of prejudice as between the parties. Ultimately, the question was what was best calculated to achieve a just result for both parties (Daimler AG v Leiduck (No 2) [2013] 2 HKLRD 822applied). (See para.40.)

(2) There was no evidence to contradict C's case or of any prejudice to D if C's application were granted. In any event, D's objection was but one of the matters for consideration under para.5 of PD 29. The Presiding Officer had failed, as required by s.20(3) of the Ordinance, to investigate such matters. Although C's claim based on summary dismissal depended on her and D's credibility, this did not preclude the use of VCF. The PO appeared to have focused only on why C could not attend the hearing and D's objection, without recognising that C was entitled to bring the proceedings to protect her civil rights, and the crucial nature of C's evidence. The refusal of C's application could deprive her of a fair and public hearing, or the chance to proceed to recover her entitlement under her contract of employment and constitute serious prejudice. Accordingly, the PO's exercise of his discretion was plainly wrong (Daimler AG v Leiduck (No 2) [2013] 2 HKLRD 822 applied). (See paras.51-52, 54-55, 58-59, 63-65.)

(3) The Tribunal had an inherent jurisdiction to regulate proceedings and a discretion to allow a lay representative who did not fall within s.23 of the Ordinance to represent and act as advocate for any party in the proceedings. The discretion was not confined to cases of strict necessity, but was exercisable to secure or promote convenience and expedition and efficiency in the administration of justice, in all the relevant circumstances of the case (O'Toole v Scott [1965] AC 939, Ho Lan Fong v Lam Gook [2004] 3 HKLRD 47, Suryani v Chan Tung Chi (HCLA 3/2012, [2012] HKEC 1558) applied). (See paras.68-72.)

(4) The PO had erred in adopting too narrow an approach by looking for "exceptional circumstances" in considering the Representation Application. He failed to investigate whether the application was made only because C could not appear in person, so as to ensure her claim was not struck out while she pursued the VCF Application, and not to take unfair advantage of D by having a "legally trained" and "experienced" representative to represent C. Further, the PO failed to have regard to the fact that s.23 specifically permitted (subject to the Tribunal's discretion) representation by persons, such as T, with paralegal training from their trade unions and experience in handling labour cases (Suryani v Chan Tung Chi (HCLA 3/2012, [2012] HKEC 1558) distinguished). (See paras.75-77.)

(5) By refusing both the VCF and the Representation Applications, C was unable to pursue her claim as it was struck out. Accordingly, the PO's exercise of discretion was plainly wrong in that it had not achieved a just result and did not secure or promote convenience and expedition and efficiency in the administration of justice (Darby Keith Harry v Belgravia Properties Ltd (HCLA 44/2015, [2016] HKEC 1384) applied). (See paras.84-85.)

(6) The power to dismiss a claim under s.20A of the Ordinance must be exercised judicially in all the circumstances of the case. The only issue was whether D was entitled to summarily dismiss C. On the available evidence, C's claim was not apparently without merit. Thus, after dismissing both of C's Applications, the Presiding Officer was plainly wrong in exercising his discretion to strike out C's claim immediately without considering its merits and/or without considering any other options such as adjourning the hearing of the claim under s.29A. (See paras.87-90.)

Appeal

This was an appeal by the claimant against the decisions of the Presiding Officer of the Labour Tribunal, Mr David Chum, dismissing her applications to transfer the proceedings to the Technology Court for her to give evidence via video conferencing facilities and to have an office bearer of a registered trade union to represent her in the proceedings, and striking out her unsettled claims. The facts are set out in the judgment.

 

Jurisdictions: 

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