In Mallorca Joenalyn Domingo v. Ng Mei Shuen [2018] HKCFI 1642, the Court of First Instance (the "Court") has allowed an appeal by a claimant of a Presiding Officer's decision to reject her application to have her Labour Tribunal proceedings transferred to the Technology Court to give evidence in the Philippines via video conferencing facilities and for a union representative to represent her.

Facts

The Applicant was a foreign domestic helper who lodged a claim in the Tribunal in October 2016 against the Respondent, her former employer, for allegedly slapping her and summarily dismissing her without proper grounds.

On 8 December 2016, the Applicant returned to her hometown in the Philippines. The Applicant applied for the proceedings to be transferred to the Technology Court and to give evidence in the Philippines via video conferencing facilities (the "VCF Application") as she was unable to return to Hong Kong to give evidence in person. The Applicant also sought leave from the Presiding Officer to allow Mr. Tang, an officer of the Hong Kong Federation of Asian Domestic Workers Union, to represent her at the hearing on 30 March 2017 (the "Representation Application").

The Presiding Officer dismissed both Applications and struck out the Applicant's unsettled claims pursuant to section 20A of the Ordinance.

Issues and Discussions

A. Whether the VCF Application should be granted

Practice Direction 29 ("PD 29") provides that parties can apply for the use of Technology Court subject to the direction of the court or tribunal concerned. In particular, paragraph 5 of PD 29 sets out the factors that the court or tribunal should take into account when making its decision.

The applicant should provide a valid reason for the use of Technology Court, but the threshold for valid reason is not high. The ultimate question was what was best calculated to achieve a just result for both parties.

Here, the Court held that the Presiding Officer had erred in law by failing to consider all the matters set out in paragraph 5 of PD 29 and failing to assess the balancing of prejudice as between the parties. The Presiding Officer attached too much importance on the Respondent's objection to the use of the Technology Court. It was held the Presiding Officer failed to have regard to the fact that the Applicant would be deprived of a fair hearing and her entitlement to bring proceedings to protect her civil right would be prejudiced. On the other hand, there was no evidence of any prejudice to the Respondent if the Applicant's application was allowed. The Court therefore held that the Presiding Officer was plainly wrong in the exercise of his discretion.

B. Whether the Representation Application should be granted

Section 23(1)(e) of the Labour Tribunal Ordinance (the "Ordinance") provides that the Tribunal has the discretion to allow an office bearer of a registered trade union or of an association of employers who is authorised in writing by a claimant or defendant to appear as their representative before the Tribunal.

Apart from section 23 of the Ordinance, the Tribunal had an inherent jurisdiction to allow a lay representative to present and act as advocate for any party in the proceeding. The exercise of the discretion should not be confined to cases where there is a strict necessity. It should be exercised for the promotion of convenience and expedition and efficiency in the administration of justice.

The Court held that the Presiding Officer had adopted too narrow an approach by looking for "exceptional circumstances" in considering the Representation Application. He failed to take into account the whole of the circumstances that are relevant to the case, such as whether the Representation Application was for the purpose of ensuring that the Applicant's claim was not struck out. Further, the Presiding Officer's concern over Mr. Tang's over qualification as a paralegal with experience in handling labour disputes was misplaced. Instead of dismissing the Representation Application, he could have given the Applicant an opportunity to appoint another representative with no legal training to represent her.

C. Whether the Applicant's claim should be struck off

In light of the evidence before the Presiding Officer, the Applicant's claim did not appear to be entirely without merit. The Presiding Officer was plainly wrong in exercising its discretion to strike out the Applicant's claim without considering any other options.

Conclusion

The Court remitted both Applications to the Tribunal to be heard before another presiding officer in the restored proceedings.

The giving of evidence by video conference and appointing a representative to appear on a party's behalf in the Labour Tribunal is permissible in certain circumstances. Employers should bear these options in mind in developing a strategy for handling proceedings in the Labour Tribunal.

Judgment is available at: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=116545&currpage=T