REYES JORNALYN MAY TABUNAR v. YAN KAM WAH AND ANOTHER

REYES JORNALYN MAY TABUNAR v. YAN KAM WAH AND ANOTHER

Leave to appeal was refused because the 2nd defendant failed to show arguable grounds of appeal — the Presiding Officer's factual findings (that D2 was the actual employer and that the alleged injury did not establish constructive dismissal) were within the range of reasonable conclusions and did not disclose legal error — and because the applicant failed to prosecute the leave application diligently (unexplained delay and failure to seek timely listing) and attempted to raise a counterclaim at review stage, which amounted to abuse of process.

Citation
REYES JORNALYN MAY TABUNAR v. YAN KAM WAH AND ANOTHER
Parties
Claimant/respondent: Reyes Jornalyn May Tabunar; 1st Defendant: Yan Kam Wah; 2nd Defendant/applicant: Ho Yan Ki
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 February 2017
Case Number
HCLA45/2015
Procedural Posture
Labour Tribunal Appeal (leave to Appeal From Labour Tribunal) / Leave to Appeal Hearing in High Court (application for Leave to Appeal and Review Order)
Outcome
Leave to appeal application dismissed
Legal Topics
Employer Liability, Constructive Dismissal, Wages and Arrears, Return Airfare Entitlement, Leave to Appeal, Abuse of Process, Judicial Review/review of Tribunal Decision
Source Language
EN
Employment Law Labour Law Civil Procedure (appeal) Employer Liability Constructive Dismissal Wages and Arrears Return Airfare Entitlement Leave to Appeal +2 more

Case Brief

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Parties

Reyes Jornalyn May Tabunar

Claimant/respondent

Yan Kam Wah

1st Defendant

Ho Yan Ki

2nd Defendant/applicant

Procedural Posture

Labour Tribunal Appeal (leave to Appeal From Labour Tribunal) / Leave to Appeal Hearing in High Court (application for Leave to Appeal and Review Order)

Legal Issues

  1. 1 Who was the actual employer of the domestic helper
  2. 2 Whether the alleged scratch amounted to assault and/or constructive dismissal
  3. 3 Entitlement to wages in lieu of notice and arrears

Ratio Decidendi

Leave to appeal was refused because the 2nd defendant failed to show arguable grounds of appeal — the Presiding Officer's factual findings (that D2 was the actual employer and that the alleged injury did not establish constructive dismissal) were within the range of reasonable conclusions and did not disclose legal error — and because the applicant failed to prosecute the leave application diligently (unexplained delay and failure to seek timely listing) and attempted to raise a counterclaim at review stage, which amounted to abuse of process.

Court Disposition

Leave to appeal application dismissed

Orders

  • Leave application dismissed
  • No order as to costs