.gif)
By Vir B. Lumicao
It was supposed to be a landmark civil case laid by a foreign domestic helper against her former employers to claim compensation for terminating her two days after they forced her to take a pregnancy test in 2013.
The three-day trial from March 7 at the District Court had hardly got started when Judge Alex Lee adjourned it until May 9 because the male employer who signed the Indonesian maid’s contract was absent, while his former wife showed up sick on the second and third days.
But before adjourning the hearing after a wasted half-day on March 9, Lee instructed prosecutor Earl Deng to look deeper into the Labour Code’s stand on the termination of an employee who is more than six months pregnant, as the maid was fired when her pregnancy was seven months.
Lee also asked the sickly female respondent, Chan Man-hong, if she had no objection to continuing with the trial without her giving evidence. Lee even hinted the possibility of the case being dismissed when he asked Chan if she would object to her legal representative obtaining advice from the claimant, Waliyah, “to proceed or if she is willing to drop the case against you?”
“The lawyer can’t do anything about it. The claimant can only do it, but in order for the lawyer to talk to the claimant, it must be with your consent,” Lee said.
The trial at the District Court stalled on Day 1 when both Respondent No. 1 Terence Yip Hoi Sun, the contractual employer, and Respondent No. 2, his ex-wife Chan, did not appear in court. The court could not locate Yip, who has separated from his wife for more than a year. Chan, when contacted by phone, said she was not feeling well.
On Day 2, Chan appeared but the judge spent the morning session asking why she failed to show up on the previous day, inquiring about her illness, asking for medical certificate, and requiring her to call up the clinic to verify her medical appointments.
She said she was in the hospital the previous day because she felt pain in her chest and had some other problems, including lack of sleep and the need to see a psychologist. She said the doctor had recommended a two-day rest including Day 2 of the trial.
Throughout the session, Chan appeared sick, drowsy, shivering, and occasionally moaning, tapping her chest and retching.
Before the lunch break, Judge Lee decided that the trial could not proceed with the respondent in such condition, so he adjourned the hearing until the next day.
On Day 3, Chan returned looking better than previously and asking permission from the court to have a male relative beside her to help her listen to the Cantonese interpretation of the proceedings.
Taking the witness stand, claimant Waliyah recounted how she was ordered by Chan to urinate in a potty in the toilet when she woke up on Oct 31, 2013, and afterwards the employer’s former wife dipped a pregnancy test strip into the receptacle. On Nov 2, the maid was fired.
Waliyah said that after her termination, she had difficulty finding a job. After giving birth, she looked for an employer and found one, but the job lasted only for six months. It was only on Dec 14, 2015 that she found a new employer who signed her up for a $5,000 monthly salary and a two-year contract.
She said that during the time that she was jobless, she stayed with PathFinders, an NGO that provides support and shelter to distressed migrant women workers and their children.
Prosecutor Deng said the maid is now claiming from Yip and Chan her wages in lieu of notice and compensation for her pregnancy dismissal. But more than the money claim, Deng said, the case had two important aspects – pregnancy discrimination which is also considered sex discrimination, and breach of contract.
He explained outside the courtroom that if the court issues a favorable judgment on the civil case, whose maximum penalty is a fine, it could pave the way for filing of criminal charges against the former employers for firing her because of her pregnancy.
