DUMAYAG, ANALYN PEDRO v. LEUNG MEI LING AND ANOTHER

DUMAYAG, ANALYN PEDRO v. LEUNG MEI LING AND ANOTHER

The leave application is dismissed because the claimant's asserted implied de facto employment contract for the subject period was unlawful for lacking Immigration Department approval; under the reliance rule and Hong Kong authorities the claimant cannot enforce rights founded on that illegality, so the tribunal's decision stood and the appeal has no merit.

Citation
[2020] HKCFI 276
Parties
Claimant / Applicant: DUMAYAG, ANALYN PEDRO; 1st Defendant: LEUNG MEI LING; 2nd Defendant: PERSONAL REPRESENTATIVE OF THE ESTATE OF CHOW SIU KAM MARY, DECEASED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 January 2020
Case Number
HCLA23/2016
Procedural Posture
Labour Tribunal Appeal (appeal From Labour Tribunal Claim No 173 of 2016) / Application for Leave to Appeal on Point of Law, Application to Amend Leave Application and Application to Restore Leave Application Decided on Paper
Outcome
All three applications (leave to appeal, amendment of leave application, restoration of leave application) dismissed; no order as to costs for ex parte applications; claimant's own costs to be taxed under Legal Aid Regulations.
Legal Topics
Constructive Dismissal, Illegality of Contracts, De Facto Employment, Leave to Appeal, Passport Retention, Statutory Entitlements, Reliance Rule
Source Language
EN
Employment Law Administrative Law Immigration Law Civil Procedure Constructive Dismissal Illegality of Contracts De Facto Employment Leave to Appeal +3 more

Case Brief

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Parties

DUMAYAG, ANALYN PEDRO

Claimant / Applicant

LEUNG MEI LING

1st Defendant

PERSONAL REPRESENTATIVE OF THE ESTATE OF CHOW SIU KAM MARY, DECEASED

2nd Defendant

Procedural Posture

Labour Tribunal Appeal (appeal From Labour Tribunal Claim No 173 of 2016) / Application for Leave to Appeal on Point of Law, Application to Amend Leave Application and Application to Restore Leave Application Decided on Paper

Legal Issues

  1. 1 Whether an alleged de facto employment contract lacking Immigration Department approval is enforceable
  2. 2 Whether the tribunal's factual findings were perverse or unsupported by evidence
  3. 3 Whether precedent in Lilik Andayani v Chan Oi Ling applies to permit enforcement despite illegality

Ratio Decidendi

The leave application is dismissed because the claimant's asserted implied de facto employment contract for the subject period was unlawful for lacking Immigration Department approval; under the reliance rule and Hong Kong authorities the claimant cannot enforce rights founded on that illegality, so the tribunal's decision stood and the appeal has no merit.

Court Disposition

All three applications (leave to appeal, amendment of leave application, restoration of leave application) dismissed; no order as to costs for ex parte applications; claimant's own costs to be taxed under Legal Aid Regulations.

Orders

  • Leave to appeal dismissed
  • Application to amend leave application dismissed