Only 2 days after the District Court Erwiana decision, a judgment was handed down in the High Court concerning a maid and her application for leave to appeal a decision of the labour tribunal that received almost no publicity.
On 10th February 2015, District Court Judge Amanda Woodcock found Law Wan-Tung, the employer of Indonesian Foreign Domestic Helper (FDH) Erwiana Sulistyaningsih, guilty of 18 charges ranging from grievous bodily harm to non-payment of employment compensation insurance. Law was subsequently sentenced to six years’ imprisonment.
Judge Woodcock commented when handing down the verdict that the risk of similar situations recurring in Hong Kong could be reduced if FDHs were permitted by the law to live outside the employer’s residence in their own accommodation.
At present in Hong Kong, it is a term and condition in the contract between employer and FDH that the FDH “shall work and reside in the Employer’s residence”. A breach of this term and condition can result in criminal prosecution for both Employer and FDH. The Employer may be liable to a fine and/or imprisonment and, for example, if the Employer is an expat on a working visa they can lose their work visa and rights associated with that work visa. The FDH can be sent straight back to their place of origin and may not be permitted to obtain work in Hong Kong again.
Hong Kong has long had a culture of employing FDHs to work in local Chinese and Expats’ homes in Hong Kong. An FDH is typically female, Filipino or Indonesian, employed to work for a family and make up approximately 3% of the population of Hong Kong.
The Hong Kong Immigration Department issues a large volume of guidance in relation to the employment of FDHs in Hong Kong, to assist both in the process of applying for a suitable visa for an FDH, but also purportedly to safeguard the FDHs’ rights and clarify the employers’ obligations.
Two of the obligations as specified in the Immigration Department’s Guidebook for the Employment of Domestic Helpers from Abroad are that the FDH must work and live in the employer’s residence and the FDH must be provided with “suitable accommodation and with reasonable privacy”. As a footnote, the Guidebook gives two examples of what is not considered to be suitable accommodation:
The Helper having to sleep on made-do beds in the corridor with little privacy or sharing a room with an adult or teenager of the opposite sex.
Further than these examples, there is no other guidance on what is “unsuitable” accommodation for an FDH in Hong Kong.
Only two days after the Erwiana decision, an application for leave to appeal a decision of the labour tribunal came before the High Court of Hong Kong on 12th February 2015 brought by an an FDH called Rowena C Cuevas. Ms Cuevas, who left her employer after allegedly being maltreated, claimed she had been constructively dismissed from her employment as a result of various incidents and the behaviour of her employer.
One of Ms Cuevas’ grievances was that she had not been provided with suitable accommodation. In her evidence before the Minor Employment Claims Adjudication Board Ms Cuevas said that she had to sleep in the kitchen every other night on a foldable bed.
The decision of the Board was to dismiss the claim, since they disbelieved the maid’s complaints about long working hours and insufficient food, and they found the complaint of verbal abuse to be unsupported by evidence. The Board considered that “being scolded for not following the former employer’s lawful and reasonable orders does not amount to verbal abuse”!
With regard to the suitability of the accommodation the FDH was provided, the Board found the place in the kitchen for sleeping to be ‘decent’.
Following the decision of the Board Ms Cuevas brought an application for leave to appeal before the High Court.
On 12th February 2015, High Court Mr Justice Chung dismissed the application for leave to appeal and in so doing said that the Board’s conclusion regarding the suitability of the accommodation could not be faulted:
[The photographs] show a foldable bed which was well-built, and the kitchen to be spacious and clean, at least by Hong Kong’s living conditions.
I also note that, because the sleeping arrangement in the kitchen has been found to be “decent”… such an arrangement might well still be found not to be serious enough to justify a finding of constructive dismissal…
No consideration was given by Mr Justice Chung as to whether “decent” accommodation is in fact “suitable” accommodation and with reasonable privacy for an FDH. Arguably, these are quite different as the kitchen may well have been “decent” – almost certainly it will have been pristine since it would inevitably be the FDH’s job to clean the kitchen – but it does not necessarily follow that the kitchen was therefore “suitable” for her to sleep in on the fold away bed.
The Judge missed a golden opportunity to send the message to all employers of FDHs that making a maid sleep in the kitchen is just another form of abuse that will not be tolerated by the Courts in Hong Kong.
The verdict in the Erwiana case and the comments made by Judge Woodcock do not sit easy with the decision by Mr Justice Chung. At times, it seems as if the Courts are taking two steps forward and one step back when it comes to the treatment of FDHs in Hong Kong.
When the rights of FDHs in Hong Kong are at the forefront of the international media, it is surprising that a Hong Kong High Court Judge could interpret the suitability of accommodation for an FDH in such a broad manner. It remains to be seen whether Ms Cuevas will be successful in reviving her claim for constructive dismissal with the further assistance of Bethune House Migrant Women’s Refuge, and only time will tell whether Hong Kong’s Judiciary is doing enough to uphold the rights and wellbeing of its large migrant workforce.