Historical Moment! Labour Tribunal granted permission for migrant domestic worker to testify via video conference facilities
On 19th February, FADWU secretary Shiella Grace Estrada represented Joenalyn Mallorca to appear at the Labour Tribunal for mentioning hearing. Upon several hours of consideration, the judge has given a historical decision: to allow Joenalyn to testify at the Technology Court via video communication facilities. The judge had also given permission to Shiella to represent Joenalyn throughout the entire hearing of the case as a union representative. Before such decision, should workers wish to recover remuneration and other welfare in default, they will have to appear in person at the Labour Tribunal. In most cases, hearing at the Labour Tribunal will last for at least a year before a verdict can be given. The decision has an impact far beyond allowing Joenalyn to recover remuneration through legal means. With this decision handed down, numerous migrant domestic workers who are unable to stay in Hong Kong due to financial difficulties or other predicaments in life are given their rightful chances to seek justice by testifying via video conference facilities.
Joenalyn was a domestic worker in Hong Kong. On top of being verbally abused, Joenalyn’s contract was terminated without notice, with her wages, payment in lieu of notice and air ticket all in default. Joenalyn had later decided to file a claim at the Labour Tribunal for wages and other payments. Unfortunately, Joenalyn’s mother was later diagnosed with cancer. Added with financial pressures at home, Joenalyn was forced to leave Hong Kong for the Philippines, taking a job at a factory while taking care of both her mother and her children. In past cases, the inability of a claimant to appear in court in person signifies the claimant to forgo all claims made. With our options limited, FADWU and Justice Without Borders had decided to assist Joenalyn in applying for the use of the Technology Court in order to testify via video conference facilities in order to continue with the hearing. On 30th March 2017, Leo, the officer of FADWU put forward at the Labour Tribunal hearing the application of the use of the Technology Court on behalf of Joenalyn, of whom had already left Hong Kong. The presiding officer at the Labour Tribunal, however, not only dismissed the application for the use of the Technology Court but had also stated that union representatives have no rights in representing workers absent from hearings. Leo was ordered to leave the court immediately.
Upon such judgements handed down by the presiding officer, it appears that all hope is lost for Joenalyn in seeking justice. Nonetheless, Joenalyn, FADWU and Justice Without Borders all refused to give up for Joenalyn’s cause. Instead, they have decided to apply for leave to appeal for Joenalyn’s case. After a long wait and hearings at the High Court, rays of hope were shed on the team on 26th March 2018. A judgement handed down viewed the presiding officer to have had erred in law and had ordered for Joenalyn’s case to be remitted to the Labour Tribunal to be heard before another presiding officer.
Remitted to the Labour Tribunal, FADWU secretary Shiella Grace Estrada once again represented Joenalyn to appear in hearing. After several hearings, and with the presiding officer taking into consideration the familial and financial conditions of Joenalyn, it is finally decided, unprecedentedly, that Joenalyn is to be allowed to testify at the Technology Court, and Shiella is allowed to represent Joenalyn as a union representative throughout the rest of the hearings. The decision acknowledged the perseverance and hard work of Joenalyn, FADWU and Justice Without Borders. Apart from the acknowledgement, this decision allows for migrant domestic workers facing similar situations to be given their rightful opportunities to seek legal justice.
No final judgement is handed down for Joenalyn’s case yet, and the Labour Tribunal had listed to adjourned the case to be heard in September at the Technology Court. FADWU will continue with the follow up of the case, and we will continue assisting workers exploited to recover their rightful pay and to seek justice.