31 July 2018
Hong Kong — A breakthrough for migrant workers in Hong Kong from the High Court! A client of Justice Without Borders (JWB) has received a groundbreaking decision in her case, confirming that workers may appear remotely by video in the Labour Tribunal and the Small Claims Tribunal.
The decision has major implications for the 380,000 migrant domestic workers in Hong Kong, as well as many thousands more who have already returned home. Those who have claims ranging from unpaid salaries to unlawful dismissal to illegal agency fees may now have access to recourse, even if they cannot remain in the city.
JWB’s client, Ms. D, is a former domestic worker seeking compensation against her previous employer at the Labour Tribunal. Ms. D was forced to return to the Philippines to care for her family when one of her parents fell gravely ill, leaving her case in limbo.
With a return to Hong Kong well beyond her family’s means, Ms. D had only one route back to her case: appearing in court via video link.
SHOW UP OR LOSE OUT: ATTENDING THE LABOUR TRIBUNAL
Hong Kong’s courts allow applications for video link when a participant in the trial cannot return to the city, and it has been used at the District Court and High Court.
However, Ms. D’s request for the use of video link is the first ever at the Labour Tribunal, the most common venue for migrant workers to bring claims ranging from unpaid wages to unfair dismissal.
The Labour Tribunal does not allow lawyers to represent claimants. Workers must appear in person or risk losing their case.
However, many migrant workers cannot afford to stay in Hong Kong for court, as they are often unable to find work and/or stay on in Hong Kong while their case is ongoing. For those who go home, returning to Hong Kong for trial is usually far beyond most migrant workers’ means.
Access to video conferencing solves this problem, but without court precedent, workers did not know whether the Labour Tribunal would grant such a request.
When the Tribunal rejected Ms. D’s application for video link and threw out her case, her pro bono lawyers at JWB’s partner Dechert LLP took her case to the High Court.
In a strong reversal, the High Court confirmed that applicants should not be required to provide an exceptional reason to use video link, and need only provide a valid reason.
The High Court also stated that the ultimate question is how to achieve a just result for both parties. The High Court recognised that if video link is the only way to continue a case, then the worker risks losing her entire case if the court rejects her application.
High Court Judge the Honourable Madam Justice Bebe Pui Ying Chu stated that Ms. D, “was entitled to bring proceedings…to protect her civil rights…” adding, “without being allowed to give evidence or be present through video link, it could mean that (Ms. D) would be deprived of a fair and public hearing…”*
With the High Court reinstating both her claims and her request for video link, the case now moves back to the Labour Tribunal, in front of a different Presiding Officer.
DRIVING BREAKTHROUGHS IN TRANSNATIONAL LITIGATION
While Ms. D’s case continues forward, the High Court decision will impact future migrant workers. With video link a clear possibility in the Labour and Small Claims Tribunals, workers now have the chance to continue their case from abroad. This addresses a huge vulnerability that workers faced, as many of them had to accept a fraction of what they were owed in settlements, or else return home empty-handed.
The next case is up soon. Another migrant worker case under JWB is already pending the outcome of Ms D’s request to use video link. JWB is also developing several new cases that may include requests for video conferencing at the Labour Tribunal.
This case is part of JWB’s strategic litigation efforts, and follows JWB’s published research on applying for video link for migrant worker cases in Hong Kong. Each successful case addresses unanswered questions in the law for migrant worker civil claims, thereby impacting the hundreds of thousands of migrant domestic workers in Hong Kong and Singapore, bringing perpetrators to justice and transforming the landscape of exploitation.
HOW JWB’S CASE NETWORKS MADE THIS VICTORY POSSIBLE
Justice Without Borders (JWB) coordinated the litigation, connecting our partners in Hong Kong and the Philippines with our client. HELP for Domestic Workers (HELP)referred the case to JWB and Hong Kong Confederation of Trade Unions (HKCTU)provided a union officer to represent Ms. D in the Labour Tribunal. Crucial to the case were also the Philippines-based International Pro Bono Alliance who provided a lawyer to help Ms. D collect evidence and stay in touch with her case in Hong Kong, and Senior Partner Ms. Kareena Teh and her team of pro bono lawyers at Dechert LLP.
* ¶59 of the judgment
Read the judgment here.
South China Morning Post, 28 July 2017: Hong Kong’s Labour Tribunal ordered to reconsider refusal to hear migrant workers via video
Hong Kong Free Press, 31 July 2017: Court rules migrant workers can appear via video when seeking compensation at Hong Kong Labour Tribunal