Labour Tribunal allows union officer to represent FDH claiming $12,000

The Labour Tribunal in Yau Ma Tei

IN a victory for foreign domestic helpers (FDHs), the Labour Tribunal has allowed a union officer to represent an FDH pursuing her $12,000-claim against her former employer, although the helper had already left Hong Kong.

Labour Tribunal presiding officer Timon Shum allowed Shiella Grace Estrada, Hong Kong Federation of Asian Domestic Workers Unions (FADWU) secretary, to represent Joenalyn D. Mallorca during the hearing on her claim on October 9.

Mallorca is seeking $12,421.33 from her former employer, Ng Mei Shuen, for wages in lieu of her termination notice, damages, and other expenses.

“This is the first time for a trade union to represent (a helper who has a pending claim). We’ve tried this before several times in other cases but we were told it was not allowed,” Estrada said in an interview after the hearing.

“We hope this is a start..that they will now allow the trade unions to be the representative when the worker is no longer around,” she added.

Estrada, also the chair of the Progressive Labour Union of Domestic Workers-Hong Kong, said they were hoping that Mr. Shum would later allow Mallorca to testify via a video link from the Philippines.

Mr. Shum set the next hearing of the case on December 28, adding that he would decide afterwards whether to allow Mallorca to testify via a video link during the case’s full-blown trial, which is expected to happen in the first half of 2019.

Ng said she opposed allowing Mallorca to testify through a video link and said that she had “no money” to pay her former domestic worker.

“She should be here,” Ng said, adding that she would also have her nine-year-old daughter and a male friend testify during the trial.

The Labour Tribunal again heard Mallorca’s case after High Court Justice Bebe Pui Ying Chu reversed the decision of another Labour Tribunal presiding officer who had dismissed Mallorca’s petition that she be allowed to testify via a video link and be represented by a trade union officer.

“He did not have regard to the fact that (Mallorca) was entitled to bring proceedings in this jurisdiction to protect her civil rights, and to the crucial nature of (her) evidence as to whether there were grounds for her summary dismissal (by her employer),” Justice Chu said in her ruling on July 26.

“Without being allowed to give evidence or be present through video link, it could mean that (Mallorca) would be deprived of a fair and public hearing, or the chance to proceed with her claim for whatwas her entitlement under her contract of employment,” she added.

Migrant advocates hailed the High Court ruling as “groundbreaking,” with two other migrants also seeking to testify at the Labour Tribunal via a video link.

“Migrant workers in Hong Kong have received good news from the High Court. A groundbreaking decision confirmed that workers seeking compensation at the Labour Tribunal may appear by video in court,” Justice Without Borders (JWB), a regional charity supporting crossborder access to compensation for migrant workers, said in a statement after the High Court ruling.

“The decision has major implications for migrant domestic workers who cannot remain in the city and can only pursue their claims from home,” it added.

JWB took up the case on referral from HELP for Domestic Workers (HELP), a Hong Kong-based frontline organization; The Hong Kong Confederation of Trade Unions (HKCTU); Philippines-based International Pro Bono Alliance; and Senior Partner Ms. Kareena Teh and her team of pro bono lawyers at Dechert LLP, also helped Ms. Domingo appeal her case.

Mallorca had filed a case at the Labour Tribunal against her employer after she was dismissed in September last year.

However, she had to go back to the Philippines in December 2017 to take care of her young children and her elderly mother who was diagnosed with cancer. The Labour Department had offered to shoulder her expenses for her to come back in HK and testify but, besides taking care of her children and sick mom, she also now has a job in a factory in Laguna province.