Illegal employment: Asylum seeker claims compensation for workplace injury

HK court reminds employers to protect all workers, regardless of status

Illegal employment: Asylum seeker claims compensation for workplace injury

Hong Kong's Court of Appeal recently dealt with a case involving an asylum seeker who sought compensation from his former employer for injuries sustained in a workplace accident.

The case, which delved into the intricacies of determining the existence of an employer-employee relationship and the court's discretion in handling cases involving illegal employment, has garnered significant attention from legal professionals and the public alike.

The case also highlighted the need for clear guidelines and regulations surrounding the employment of foreign workers, particularly those with uncertain legal status.

The accident and claim

The worker, an asylum seeker from Bangladesh, commenced the application for Employee Compensation against his alleged employer in June 2017.

According to his claim, he was employed to work at a vehicle scrap yard under the supervision of a person-in-charge who discussed the terms of employment with him and provided daily work instructions.

In November 2015, the worker suffered severe burn injuries in an accident that occurred during the course of his employment.

Following the incident, the person-in-charge allegedly warned the worker not to disclose his employment status due to his illegal status in Hong Kong.

As a result, the worker initially misled authorities about the cause of his injuries, claiming that he was burnt by cooking oil at home.

The employer’s defence

The employer, who operated the business at the yard as a sole proprietor, strongly denied the existence of an employment relationship with the worker.

In a brief witness statement, the employer asserted that he ran the business alone and was solely responsible for hiring.

He claimed that he had no acquaintance with the worker and denied employing him in any capacity.

The judge’s decision

During the trial, the worker stood as the sole witness, providing evidence and facing cross-examination by the employer's counsel.

After carefully assessing the evidence presented, the judge ruled in favour of the worker on both the employment issue and the discretion issue, ultimately awarding him compensation amounting to $38,133.33.

The judge found the worker's evidence credible, accepting that the person-in-charge was acting on behalf of the employer when discussing the terms of employment and instructing the worker to work at the yard.

The court transcript revealed that the judge had confirmed with the employer's counsel that they were not arguing that the person-in-charge was "not employing [the worker] on behalf of the employer."

The appeal and the court's findings

Dissatisfied with the outcome, the employer brought several grounds of appeal challenging the judge's findings on both the employment issue and the discretion issue.

However, the Court of Appeal found no merit in any of the grounds raised. The court reiterated the well-established approach for determining the existence of an employer-employee relationship.

The court emphasised that "the court should adopt an overall evaluative-impressionistic approach in deciding whether an employment relationship exists by taking into account various relevant factors."

Moreover, the court pointed out that the employer's challenge against the judge's finding of an employer-employee relationship was a challenge against a finding of fact.

The court would only intervene on appeal if it could be demonstrated that the judge had misdirected himself in law or reached a decision that no reasonable judge, properly directing himself on the relevant facts, could have reached.

In a decisive ruling, the Court of Appeal dismissed the employer's appeal, finding the judge's decision to be well-reasoned and supported by the evidence presented.

The court stated, "it was more than reasonably open to the Judge to conclude on the evidence that the worker had established his employment relationship with the employer."

The court also addressed the employer's argument that the worker's credibility was compromised by his initial false statements to authorities regarding the cause of his injuries.

The court noted that "the Judge rejected it on the basis that the employer had not challenged the worker's case under cross-examination that it was [the person-in-charge] who instructed him to lie about it."

The Court of Appeal's ruling in this case served as a reminder of the importance of properly establishing and documenting employment relationships, even in cases involving foreign workers with uncertain legal status.

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