Filipina domestic helper in Hong Kong wins appeal against claims dismissal by HK tribunal

Jasmine Siu, South China Morning Post

Posted at Nov 04 2020 12:51 PM

A Filipino domestic helper who was fired and later denied back pay and damages over allegations that she sexually abused her Hong Kong employer’s seven-year-old daughter has won an appeal against the Labour Tribunal’s previous dismissal of her claim.

The tribunal last year concluded that Ng Mei-shuen’s summary termination of Mallorca Domingo on September 22, 2016 was justified because the employer had proved, on a balance of probabilities, that the helper had hurt her daughter on multiple occasions while bathing the child.

But the High Court on Tuesday found no evidence supporting the conclusion, and said it was “an error of law” based on the presiding officer’s misunderstanding of the evidence or irrational inference from the facts. The court ordered that the case be remitted for a retrial at the tribunal.

Domingo sued her former boss in October 2016, alleging that she had been slapped by Ng and dismissed without proper grounds in a claim for some HK$85,900 (US$11,080) in wages in lieu of notice, annual leave pay and damages for breach of trust.

The court heard Domingo’s employment with Ng lasted only about 3 ½ months when the minimum wage for domestic helpers was HK$4,210.

Ng claimed she had four grounds for dismissal, alleging that Domingo had failed to wash her daughter’s clothes properly or play with the child.

The employer also accused Domingo of adding a “foreign substance” to her shampoo, and described the helper as “quite a psychopath” for hurting her daughter “multiple times” while bathing her.

She called police on September 22, 2016, but only to report the shampoo allegation, claiming it had caused pain and irritation to her scalp.

In the Labour Tribunal hearing last year, Domingo denied the allegations against her as she testified from the Philippines via a live television link – a first for the tribunal.

The helper also argued that the accusations of sexual abuse could not be true as they only first emerged in the daughter’s statement dated November 2018, two years after she was fired, while Ng only mentioned them during the hearing.

But Ng denied any fabrication and called her now 10-year-old daughter as a witness, with the girl subsequently giving a conflicting account of the alleged abuse, the extent of the injuries, the number of times it happened and the doctors she consulted.

There was also no independent medical evidence of the alleged abuse, as Ng claimed she could not track down the private doctor they visited because he had moved away. This was after her daughter testified to seeing a government doctor on two occasions and a private one on another.

Still, acting principal presiding officer Ho Wai-yan concluded at the time that Domingo was not a reliable witness and found the alleged abuse “a serious misconduct” that justified summary termination, but dismissed the other claims against her, in part due to lack of proof.

On appeal, however, Domingo’s lawyer Kareena Teh argued that the allegation of abuse was a serious one that called for strong cogent evidence, but the presiding officer had failed to handle it with extra care, despite its belated introduction to the case.

Madam Justice Bebe Chu Pui-ying also noted Ho was “clearly mistaken” in finding Ng had first mentioned the allegation in October 2016, and observed that the presiding officer had at times confused evidence from the mother and daughter.

“What was clear was that the defendant did not ask the claimant to stop bathing the daughter,” the judge said.

“She did not make any report to police even though the defendant’s evidence of the claimant’s alleged misconduct would amount to ‘sexual abuse’ of the daughter, and yet the defendant made a report over the second shampoo allegation.

“I am of the view that there was no evidence to support the presiding officer’s conclusion.”