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.

1. the views of all the parties;
2. the availability of the Technology Court;
3. the subject-matter of the proceedings or the relevant part of the proceedings; and
4. 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.

The amendments under the Employment (Amendment) (No.2) Ordinance 2018 (the “Amendment”) to the Employment Ordinance (Cap.57) (“EO”) came into effect on 19 October 2018 which imposes more stringent actions on the employer who unreasonably and unlawfully dismisses its employee.

Some examples of unlawful dismissal are if an employee is dismissed:-

1. during pregnancy and maternity leave;
2. during statutory paid sick leave;
3. after work-related injury and before determination or settlement and/or payment of compensation under the Employees’ Compensation Ordinance (Cap.282);
4. by reason of the employee exercising trade union rights; or
5. by reason of the employee giving evidence for the enforcement of relevant labour legislation.

Before the Amendment, if an employee had been unreasonably and unlawfully dismissed, subject to the mutual consent of the employee and the employer, the court or the Labour Tribunal had the power to make an order for reinstatement or re-engagement of the employment of such employee by the relevant employer.

If no reinstatement or re-engagement order was made, the court or Labor Tribunal, might make an award of terminal payments and an additional award of compensation not exceeding $150,000 to the employee. 

The significant part of the Amendment is that the court or Labour Tribunal now no longer needs to seek consent from the employer before making an order of reinstatement or re-engagement if it is of the view that the implementation of such order is reasonably practicable.

If the employer fails to comply with the reinstatement or re-engagement order, the employer shall pay to the employee a further sum on top of the abovementioned monetary awards and such sum can amount up to three times of the employee’s average monthly wages, subject to a cap of HK$72,500.

Irrespective, can a compulsory reinstatement or re-engagement order really assist an employee being unreasonably and unlawfully dismissed?

1. The likelihood of a compulsory reinstatement or re-engagement order  

Under the Amendment, the court or the Labour Tribunal must make a compulsory order if it finds that reinstatement or re-engagement of the employee by the employer is reasonably practicable provided that the employee has been dismissed both unreasonably and unlawfully (as detailed above). The factors, without limitation, to be taken into account by the court or the Labour Tribunal, when making such a finding include:-

(i)     the circumstances of the employer and the employee;

(ii)    the circumstances surrounding the dismissal;

(iii)   any difficulty that the employer might face in the reinstatement or re-engagement of the employee; and

(iv)  the relationship between the employer and the employee, and between the employee and other persons with whom the employee has connection in relation to the employment.

The Amendment grants the court and the Labour Tribunal the power to request and obtain a report prepared by the Commissioner for Labour containing details of the conciliation between the parties and information relating to the circumstances of the claim with the agreement of the employer and the employee in relation to both the preparation and the content of such report.

It is very likely that the relationship between the employer and the employee has already broken down severely by the time the matter is put forward to the court or the Labour Tribunal.

It is also not uncommon that cases being heard at the Labour Tribunal might not have gone through any or a complete conciliation process between the relevant employer and employee at the Labour Department.

The prospect of obtaining an optimistic report to the effect that the court or Labour Tribunal can rely on and therefore make a finding that the compulsory order is reasonably practicable is plainly low.   

2. Possible issues that might arise after the reinstatement or re-engagement

Even if a compulsory order is ordered and the employer acts on that, there can be chances that the employer would not be on good terms with the employee and thus issues relating to promotion, job allocation and performance appraisal which is usually in connection with pay rise and are all subject to the discretion of the employer are bound to arise after the reinstatement or re-engagement.

3. Alternative to reinstatement or re-engagement order

Having said that, the employee (not the employer) can take an application to the court or the Labour Tribunal to vary the first re-engagement order (the “principal order”) under which the employee will be engaged by the successor of the original employer or its associated company (the “alternative employer”) rather than the original employer.  

The application must be accompanied with a written agreement among the original employer, the employee and the alternative employer. Furthermore, the written agreement must expressly state that the varied re-engagement is to be treated as compliance with the principal order and must contain specified terms stipulated in the Amendment. An order of variation may only be made if the court or Labour Tribunal is satisfied with the terms of the written agreement as comparable to the terms of agreement under the principal order. 

To this end, how the employee can liaise with the original employer and through it, with an alternative employer, for a written agreement for the varied re-engagement before the same can be presented to the court or the Labour Tribunal for an application to vary the principal order remains questionable. We believe that directions from the court or the Labour Tribunal to facilitate such liaison may be necessary and the employee is encouraged to seek independent legal advice when negotiating such terms.  

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.