On 10 Feb 2019, the Labour Tribunal (the “Tribunal”) granted permission to a claimant to testify in the Philippines via video conferencing facilities. The claimant was a foreign domestic helper working in Hong Kong and she is seeking compensation against her employer who allegedly physically assaulted and thereafter summarily dismissed her. Due to financial and family reasons, the claimant left Hong Kong and was unable to give evidence in person at the Tribunal.
The possibility of the use of video link to give testimony in the Tribunal proceedings
The Labour Tribunal Ordinance (“the Ordinance”) requires the claimant to “appear” at all stages of the hearings held in the Tribunal including giving testimony. Although the Tribunal might permit “an office bearer of a registered trade union” to “appear” on behalf of the claimant, this exception is normally confined to hearings without the need to give evidence. As such, prior to this ruling, it is unclear whether giving testimony by means of video link falls under the requirement of “appearance”.
On the other hand, the Ordinance provides that Tribunal proceedings should be conducted in an informal manner with great flexibility in both locations and procedures.
The Technology Court, a venue that offers facilities, among others, to hear evidence via video link (“video link evidence”) is also made explicitly available to the Tribunal under the law. Thus, theoretically speaking, it is possible to adduce video link evidence in the proceedings at the Tribunal and the ruling affirms this principle.
When should the use of video link to give testimony be allowed in the Tribunal?
Whether the video link evidence is admissible in the proceedings at the Tribunal rests on the Presiding Officer’s discretion. The predominant principle is that giving evidence via video link is a privilege and an exception to the general rule which requires evidence to be given within the courtroom. Ultimately, the discretion exercised should be the best course calculated to achieve a just result for both parties.
Some factors that the Presiding Officer should consider when exercising his/her discretion are set out in the Practice Direction for the use of the Technology Court (see below). This applies even if the use of video link does not require transferal of proceedings to the Technology Court.
- the views of all the parties;
- the availability of the Technology Court;
- the subject-matter of the proceedings or the relevant part of the proceedings; and
- all other material circumstances, including in particular, whether the proposed use of the Technology Court is likely:-
- to promote the fair and efficient disposal of the proceedings;
- to save costs; and/or
- materially to delay disposal of the proceedings.
Previous High Court cases suggest that other circumstances such as:-
- where if video link evidence is not allowed would result in a denial of access to court by the party;
- where the witness concerned is a key witness;
- where it involves considerable costs, expenses, and inconvenience to the party in bringing the witness to Hong Kong for proceedings; and
- where the party in opposing the video link applications gains a collateral advantage or has ulterior motives,
are all favorable to the Presiding Officer’s discretion to grant permission to adduce video link evidence.
Why does this ruling matter?
Currently, there are nearly 360,000 foreign domestic helpers being employed in Hong Kong annually. Before the ruling, the common perception was that if the helper wished to pursue a claim at the Tribunal, he/she either had to take up a new employment in Hong Kong immediately after the previous employment was terminated or to obtain an extension of stay under a special pass and renew it repeatedly in order to stay in Hong Kong and attend hearings in person.
However, the chances of taking up new employment right away is low while the helper has an ongoing employment related lawsuit and the helper also needs to apply for a new work visa before taking up a new employment, if so obtained. So commonly, without much financial support and away from home, the helper would have to leave Hong Kong and thereby give up his/her claims against the employer altogether.
This ruling allows the helper to continue pursuing the claim at the Tribunal despite having returned to the home country and thus increases his/her chances of claiming compensation against the employee.
We anticipate that this ruling might encourage the use of video link to give testimony in Small Claims Tribunal and the Minor Employment Claims Adjudication Board in the near future.
OLN provides a full range of employment related services. If you have any questions regarding the above or any other employment issues, please contact one of the members of our employment team.