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DCEO 16/2018
[2022] HKDC 152
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EQUAL OPPORTUNITIES ACTION NO. 16 OF 2018
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BETWEEN
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HADEN, FRANCIS WILLIAM |
Claimant |
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and
|
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LEIGHTON CONTRACTORS (ASIA) LIMITED |
Respondent |
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Coram: His Honour Judge H. Au-Yeung in Court
Dates of Hearing: 8 – 10 November & 3 December 2021
Date of Judgment: 11 February 2022
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JUDGMENT
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|
Paras |
| A. The claim |
§1 |
| B. The agreed facts |
§§2-19 |
| C. The law |
|
| C1. Statutory provisions |
§§20-21 |
| C2. The 2-stage test |
§§22-28 |
| C3. Real cause (causa causans) test vs “but for” (causa sine qua non) test |
§§29-42 |
| C4. Drawing of inference |
§§43-45 |
| D. The approach to be adopted |
§§46-63 |
| E. The claimant’s complaint – an overview |
§§64-66 |
| F. Findings of primary facts |
|
| F1. The claimant’s job performance |
§§67-73 |
| F2. Bypassing and usurping of the claimant’s role |
§§74-84 |
| F2.1 Hiring of Blasting Team |
§§85-90 |
| F2.1.1 Mr Chris Leung’s reluctance to hire non-Chinese Blasting Engineer |
§§91-96 |
| F2.1.2 Mr Ngai’s recruitment |
§§97-108 |
| F2.2 Team not getting back information/not attending meetings and workshops |
§§109-112 |
| F2.2.1 Lack of information sharing |
§§113-126 |
| F2.2.2 Attendance at workshops and meetings |
§§127-131 |
| F2.3 Meeting on 9 February 2017 and the subsequent (lack of) communication |
§§132-139 |
| F2.3.1 The 9 February 2017 meeting |
§§140-143 |
| F2.3.1.1 Saving of documents on server |
§§144-149 |
| F2.3.1.2 Necessity of the 9 February 2017 meeting |
§§150-154 |
| F2.3.1.3 Intended exclusion of the claimant |
§§155-164 |
| F2.3.2 Mr Ngai’s email dated 20 February 2017 |
§§165-172 |
| F2.3.3 The claimant’s email sent on 13 February 2017 |
§§173-179 |
| F2.3.4 The proposed meeting on 16 February 2017 |
§§180-184 |
| F2.4 Mr Torka’s Actions |
§§185-186 |
| F3. The meeting on 27 February 2017 |
|
| F3.1 The decision to terminate the claimant’s employment |
§§197-203 |
| F3.2 The meeting |
§§204-214 |
| F4. “Gweilo” |
§§215-236 |
| F5. Lack of process |
§§237-244 |
| G. Drawing of inference from the primary facts |
§§245-257 |
| H. Relief |
§§258-263 |
| H1. Injury to feelings |
§§264-273 |
| H2. Loss of income |
§§274-284 |
| H3. Punitive/exemplary damages |
§§285-291 |
| I. Order |
§292 |
| J. Costs |
§§293-295 |
A. THE CLAIM
1.In these proceedings, the claimant alleged that his employment was terminated as a result of, or the termination was otherwise influenced by, his race, in particular he is not Chinese. He therefore sues the respondent for various reliefs, including a declaration, an order for apology, and damages.
B. THE AGREED FACTS
2.Parties have helpfully agreed the following facts.
3.On 1 June 2010, the claimant was offered an employment with the respondent.
4.On 29 June 2010, the claimant commenced employment with the respondent.
5.On 1 August 2016, the respondent assigned the claimant to work on the construction of the Tseung Kwan O to Lam Tin Tunnel (“the Project”) as the Blasting Team Leader as defined in and pursuant to Clauses 1.12C(2)(iv) and 1.12G of Section 1 of the Particular Specification under Contract No.NE/2015/01 (“the Contract”).
6.The respondent’s role and responsibilities as the Blasting Team Leader in the Project were stipulated in Clauses 1.12G and 1.12G(1) of Section 1 of the said Particular Specification.
7.The contractor for the Project was and is at all material times the Leighton-China State Joint Venture (“the Joint Venture”) established between the respondent and China State Construction Engineering (Hong Kong) Limited (“China State”).
8.The Project required blasting, which involves the controlled use of explosives to break rocks and excavate large areas for construction work.
9.Blasting can only be done with permits from the Commissioner of Mines. To obtain such permits, Contractor’s Blasting Assessment Report (“CBAR”) and Blasting Method Statement (“BMS”) had to be submitted to the Engineer and the Commissioner of Mines for approval.
10.AECOM was engaged and designated by the Government as the Engineer of the Project.
11.Aurecon, an engineering design consultant, was engaged by the Joint Venture to assist in the preparation of technical submissions.
12.Between 28 January and 12 February 2017, the claimant was on annual leave.
13.On 9 February 2017, members of the Blasting Team (except the claimant), Mr CN Lai (a member of the Executive Board of the Joint Venture) (“Mr Lai”) and officers of Aurecon had had a meeting.
14.On 21 February 2017, from 9:41am to 1:53pm, Mr Lai and the claimant exchanged a number of emails.
15.On 21 February 2017 at 5:39pm, Mr Paul Freeman (Operations Manager and a member of the Executive Board of the Joint Venture) (“Mr Freeman”) emailed Ms Jessica Poon instructing her to prepare paperwork to terminate the claimant’s employment on 27 February 2017.
16.On 27 February 2017, Mr Jan Torka (Project Director of the Project) (“Mr Torka”) had a meeting with the claimant. Part of that meeting was audio recorded by the claimant with the consent of Mr Torka.
17.On 28 February 2017, the respondent terminated the claimant’s employment.
18.On 4 May 2017, the claimant lodged with the Equal Opportunity Commission (“EOC”) a race discrimination complaint against the respondent.
19.On 4 September 2018, the claimant commenced these proceedings.
C. THE LAW
C1. Statutory provisions
20.In Hong Kong, race discrimination is prohibited under the Race Discrimination Ordinance (Cap.602, Laws of Hong Kong) (“the Ordinance”).
21.As far as this action is concerned, the following provisions in the Ordinance are relevant:
Section 4 Racial discrimination
(1) In any circumstances relevant for the purposes of any provision of this Ordinance, a person (the discriminator) discriminates against another person if—
(a) on the ground of the race of that other person, the discriminator treats that other person less favourably than the discriminator treats or would treat other persons […]
Section 8 Meaning of race, on the ground of race, racial group and comparison of cases of persons or different racial groups
(1) In this Ordinance and subject to subsections (2) and (3) –
(a) Race, in relation to person, means the race, colour, descent or national or ethnic origin of the person, and includes a race, colour, descent or national or ethnic origin that is imputed to the person;
(b) – (d) […]
(2) – (4) […]
(5) A comparison under section 4(1) of the case of a person of a particular racial group with that of a person not of that group must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
(6) […]
Section 9 Act done for racial and other reason
If –
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the race of a person (whether or not it is the dominant reason or a substantial reason for doing the act),
then, for the purposes of this Ordinance, the act is taken to be done for the reason of the race of the person.
Section 10 Discrimination against applicants and employees
(1) […]
(2) It is unlawful for an employer, in the case of a person employed by that employer at an establishment in Hong Kong, to discriminate against that employee—
(a) – (b) […]
(c) by dismissing the employee, or subjecting him or her to any other detriment.
(3) – (10) […]
C2. The 2-stage test
22.It is trite that the consideration of a claim of direct discrimination entails two questions:
(1) Whether the respondent had treated the claimant less favourably than it treated or would treat others (the Comparator Question);
(2) Whether the less favourable treatment (if any) was on the ground of the claimant’s race (the Causation Question).
23.Having said that, it has also been recognised that the identification of an appropriate comparator may sometimes cause unnecessary complication.
24.An example in which the court has experienced this difficulty is in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337. In that case, the applicant was a chief inspector of the respondent chief constable’s police force. Under the force’s staff appraisal scheme, annual reports on constables were to be completed by superintendents, but in practice chief inspectors, including the applicant, did them. Following complaints by two constables about the applicant’s appraisals, and a meeting with the representatives of the Police Federation, the applicant’s superintendent decided to do the appraisals himself. The applicant objected that the two male chief inspectors in the other two divisions were still doing the appraisals, and therefore she complained to an industrial tribunal that she was unlawfully discriminated against on the ground of her sex. The tribunal concluded that she had been unfavourably treated and that she had been discriminated against on the ground of her sex. The Court of Appeal in Northern Ireland allowed the appeal by the chief constable on the ground that no detriment had been established. On the chief inspector’s appeal to the House of Lords, Lord Nicholls of Birkenhead discussed about the proper approach to be adopted as follows:
“7. […] deciding a discrimination claim one of the matters employment tribunals have to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the ‘less favourable treatment’ issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the ‘reason why’ issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.
8. No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.
9. The present case is a good example. The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the 1975 Act which, for ease of discussion, I have so far referred to. Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.
10. I must take this a step further. As I have said, prima facie the comparison with the two male chief inspectors is not apt. So be it. Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not. Thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue. And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.
11. This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.
12. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case.” (emphasis added)
25.What was said by Lord Nicholls as quoted above was echoed by Mummery LJ in Stockton-on-Tees Borough Council v Aylott [2010] ICR 1278:
“43. At this point I turn to a pellucid passage in the opinion of Lord Nicholls of Birkenhead in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 (which was cited by the appeal tribunal), paras 7 – 12, for the proposition that the two-stage analysis which has been followed by the employment tribunal in direct discrimination cases can cause unnecessary difficulty and confusion in practice. As Lord Nicholls explained in that passage, the question of less favourable treatment than an
appropriate comparator and the question whether that treatment was on the relevant prohibited ground may be so intertwined that one cannot be resolved without at the same time deciding the other. There is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? Once it is found that the reason for the treatment was a proscribed one, there should be no difficulty in deciding whether the treatment on that ground was less favourable than the treatment that was or would have been afforded to others. If the evidence establishes that the reason for the treatment is the claimant’s disability, then it will usually follow that the hypothetical comparator would not have been treated in the same way and there will be discrimination.
44. Applying that approach to this case I think that the decision whether the claimant was treated less favourably than a hypothetical employee of the council is intertwined with identifying the ground on which the claimant was dismissed. If it was on the ground of disability, then it is likely that he was treated less favourably than the hypothetical comparator not having the particular disability would have been treated in the same relevant circumstances. The finding of the reason for his dismissal supplies the answer to the question whether he received less favourable treatment: the real question is not so much about the hypothetical comparator, as whether the employment tribunal’s finding on the ground of dismissal was supported by evidence.”
26.In Sit Ka Yin Priscilla v Equal Opportunities Commission & Others (DCEO 11/1999, unreported, 11 February 2010), His Honour Judge Lok (as his Lordship then was) considered that the comparators proposed by the plaintiff therein were inappropriate. Having made reference to the case of Shamoon, the learned Judge found that the identification of an appropriate comparator would be difficult in the circumstances of that case and the exercise would cause more unnecessary confusion. His Honour therefore concentrated on the factual inquiry as to why the plaintiff therein was treated in the way as she was. He described the “central question” as whether the termination of plaintiff’s employment and the other treatments received by her were due to the unlawful discrimination, victimisation or harassment as alleged, or the same were caused by the plaintiff’s persistent sub-standard work performance or some other reasons as maintained by the defendants therein.
27.The plaintiff’s claim therein was dismissed. The plaintiff then sought leave to appeal at the Court of Appeal. One of the grounds relied on by the plaintiff therein was that the learned Judge was wrong in following the approach in Shamoon. The plaintiff submitted that there was an important difference between the legislation under consideration in Shamoon (Sex Discrimination (Northern Ireland) Order 1976) and the Hong Kong legislation, in that under section 3 of Disability Discrimination Ordinance and section 4 of Sex Discrimination Ordinance, it would suffice if the discrimination was a reason (whether or not it is the dominant or a substantial reason for doing the act) whereas in England or Ireland, discrimination was made out only if the proscribed acts “had a significant influence on the outcome”. This ground was rejected by the Court of Appeal because the approach recommended by Lord Nicholls did not depend on whether the discrimination was a reason or the dominant or a substantial reason.
28.Paragraph 11 of the speech of Lord Nicholls cited above had also been quoted with approval by the Court of Final Appeal in QT v Director of Immigration (2018) 21 HKCFAR 324 (see footnote 60 thereof).
C3. Real cause (causa causans) vs “but for” (causa sine qua non) test
29.When the “reason why” issue is considered, a question arises as to the appropriate test which should be adopted in the process.
30.Mr Lui and Ms Cheng for the respondent submitted that the court should ascertain the real cause (causa causans) instead of the “but for” cause (causa sine qua non) for the dismissal of the claimant. On the other hand, Ms Herbert for the claimant argued that these tests are not mutually exclusive and these tests “are compatible and complement each other”[1].
31.Counsel have cited a number of authorities on this issue and I will refer to some of them below.
32.In Secretary for Justice & Others v Chan Wah [2000] 3 HKCFAR 459, two non-indigenous villagers challenged the validity of the 1999 electoral arrangements for the position of village representative at their respective villages. One of the issues before the Court of Final Appeal was whether the electoral arrangements for Po Toi O Village were inconsistent with the Sex Discrimination Ordinance. Li CJ had the following to say when he held that there was indeed sex discrimination in such arrangements:
“In determining whether a particular arrangement involves sex discrimination, the Court of Appeal correctly adopted the ‘but for’ test enunciated by Lord Goff considering the Sex Discrimination Act 1975 in R v Birmingham City Council Ex parte Equal Opportunities Commission [1989] 1 AC 1155 at 1194 A - C:
‘There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned .... is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex.’
This test was applied in James v Eastleigh Borough Council [1990] 2 AC 751 where Lord Bridge pointed out that the test is an objective one (at 765D).
Applying this test, it is clear that there is unlawful discrimination here. But for his sex, the non-indigenous man (married to an indigenous villager) would have received the same treatment, that is the right to vote, as the non-indigenous woman (married to an indigenous villager)).”
33.In L v Equal Opportunities Commission & Others (DCEO 1/1999 and DCEO 6/1999, unreported, 13 November 2002), a former employee of the EOC brought a claim against the EOC and others for, among other things, discrimination and harassment on account of disability. Relying on the case of Chan Wah, parties therein agreed that the “but for” test was applicable to discrimination cases. Be that as it may, His Honour Judge Muttrie referred to the case of Seide v Gillette Industries Ltd [1980] IRLR 427, in which the subject matter concerned was a claim of race discrimination in the context of employment, and quoted what Slynn J (as he then was) said at paragraph 30 as follows:
“It does not seem to us to be sufficient merely to consider whether the fact that the person is of a particular racial group within the definition of the statute is any part of the background, or is (as is said in other cases) a causa sine qua non of what happens. It seems to us that the question which has to be asked is whether the activating cause of what happens is that the employer has treated a person less favourably than others on racial grounds.” (emphasis added)
34.The learned Judge then stated:
“52. This judgment is of assistance because the discrimination provisions of the DDO follow closely the racial provisions of the Race Relations Act. The prohibition is against the employer treating, in the one case on disability grounds, and in the other on racial grounds, an employee less favourably than it treated or would treat another person. It draws the distinction well known in the law of tort between the causa causans or operative cause and the causa sine qua non, or background cause.
53. Section 3 [of the Disability Discrimination Ordinance] causes difficulty, however. It mentions disability as a reason for an act, rather than an act being done ‘on the ground of’ or ‘on account of’ disability. It seems to open the way to consideration of an employer’s intentions which are, on the authorities, irrelevant. It is probably intended to deal with the situation where, for example, a disabled person is made redundant and chosen for redundancy because he is disabled. But it would not follow that because disability is present, it must be one of the reasons for the employer’s action. The plaintiff in such a case would have to show that his disability was at least one of the reasons for making him redundant, i.e. one of the activating causes of the employer’s decision. I do not think that section 3 can be intended to provide that in any case where disability is a causa sine qua non it should be taken as the causa causans. In effect it would produce an irrebuttable presumption that any action taken in respect of a disabled employee was caused by his disability. That would produce absurdity.” (emphasis added)
35.The issue on appropriate test was then considered in Yeung Chung Wai v St Paul’s Hospital [2006] 3 HKC 521. In her Judgment, Her Honour Judge M Ng (as she then was) first of all made reference to various English authorities:
“12. The DDO is modelled on equivalent English legislation (eg the discriminatory provisions of the Race Relations Act), so the Hong Kong courts have looked to England where a large body of case law has arisen for guidance on interpretation. Mr Chan SC relies on Nagarajan’s case, which is on discrimination by victimisation. Lord Nicholls said at p.71 that :
‘…… Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence, which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.
The crucial question just mentioned is to be distinguished sharply from the second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point. …… In particular, if the reason why the alleged discriminator rejected the complainant’s job application was racial, it matters not that his intention may have been benign. ……’
He went on to say at p.72 as follows :
‘…… A variety of phrases, with different shares of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided as far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out. ……’ (my emphasis)
13. In determining whether there is discrimination, the tribunal has to decide whether the proper inference to be drawn from the evidence is that the prohibited act was a reason why the discriminator acted as he did. Lord Nicholls at p.72 said : ‘… in order to justify such an inference the tribunal must first make findings of primary facts from which the inference may properly be drawn ……’. The same point was made in Equal Opportunities Commission v Birmingham City Council [1989] 1 All ER 769 and James v Eastleigh BC [1990] 2 All ER 607, both sex discrimination cases. The above 3 English authorities have been cited with approval by the Hong Kong courts (eg Chang Ying Kwan v Wyeth (HK) Limited DCEO10/1999, H H Judge Saunders (unreported, 27th February 2001) and Lam Wing Lai’s case).
14. Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947 is another case on discrimination by victimisation. In that case, the applicant police officer complained to an industrial tribunal of unlawful racial discrimination. The chief constable would ordinarily comply with requests for references but refused to provide one to the applicant because of pending proceedings against him, so the applicant additionally complained of victimisation. It was held the refusal was not ‘by reason that’ the applicant brought proceedings against the chief constable, so he did not discriminate by way of victimisation. Lord Nicholls expanded on his views in respect of the ingredient ‘by reason that’ at p.1954 as follows :
‘…… the third ingredient (“by reason that”) does not raise a question of causation. Causation is a slippery word, but normally is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the “operative” cause, or the “effective” cause. Sometimes it may apply a “but for” approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [2000] 1 AC 502, 510-512, a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases “on racial grounds” and “by reason that” denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.’ (my emphasis)
15. Lord Hoffman accepted in one sense the fact the applicant had brought proceedings was a cause of his being treated less favourably. If he had not brought proceedings, he would have been provided a reference. In some contexts, a causal link of this kind would be enough (see the cases of Birmingham City Council and Eastleigh BC). But in Khan’s case, it did not follow that the applicant bringing proceedings was a reason (conscious or unconscious) why he was treated less favourably. The statutory provision contemplated the discriminator to have knowledge of the protected act and such knowledge caused or influenced the discriminator to treat the victimised person less favourably than he would treat other persons, which was not at all the same as saying that but for the protected act, the applicant would not have been treated in the way he was. Lord Scott put the matter as follows at p.1964 :
‘Was the reference withheld “by reason that” Sergeant Khan had brought the race discrimination proceedings? In a strict causative sense it was. If the proceedings had not been brought the reference would have been given. The proceedings were a causa sine qua non. But the language used in section 2(1) is not the language of strict causation. The words “by reason that” suggest, to my mind, that it is the real reason, the core reason, the causa causans, the motive for the treatment complained that must be identified.’ ”
36.The learned Judge then considered local authorities. She first of all referred to the CFA case of Chan Wah, and expressed her view that:
“16. […] The simple ‘but for’ test sufficed since the conduct complained of could not have admitted of any explanation other than a gender consideration. But it does not exclude the situation recognised in Khan’s case that sometimes it would not be sufficient.”
37.Then she referred to the case of Chang Ying Kwan v Wyeth (HK) Ltd [2001] 2 HKC 129:
“17. In that case, the plaintiff claimed she was subjected to unlawful discrimination on the ground of her pregnancy and as a result of her complaint to the EOC she was victimised. H H Judge Saunders referred to Nagarajan’s case and the Court of Appeal decision in Khan’s case ([2000] IRLR 324), but did not have the benefit of the House of Lords decision in Khan’s case delivered some months later. Although the learned judge adopted the ‘but for’ test, he was alert to the need to establish the causa causans as evident from his approval of the following passage from Slynn LJ’s judgment in Seide v Gillette Industries Ltd [1980] IRLR 427 in relation to racial discrimination :
‘It does not seem to us to be sufficient merely to consider whether the fact that the person is of a particular racial group within the definition of the statute is any part of the background, or is (as it is said in other cases) a causa sine qua non of what happens. It seems to us that the question that has to be asked is whether the activating cause of what happens is that the employer has treated the person less favourably than others on racial grounds.’ (my emphasis)
H H Judge Saunders went on to say at para.26 of the judgment as follows :
‘It may be seen that the standard set by Lord Steyn is lower than that sought by Lord Nicholls or Slynn LJ. Whereas Lord Nicholls would require that there be a ‘significant influence’, and Slynn LJ an ‘activating cause’ Lord Steyn merely required that the employee must be so treated because of the employer’s knowledge of the protected act. ……’ (my emphasis)
Whatever expression that was used, the learned judge held that to find liability sex discrimination must be causative of the less favourable treatment as distinct from being part of the background.”
38.The learned Judge then referred to the case of L v Equal Opportunities Commission & Others cited above, and said:
“19. Such view is also echoed in the judgment of H H Judge To in Aquino Celestina Valdez v So Mei Ngor Kitty DCEO3/2004 (unreported, 12th September 2005). He said at para.11 that :
‘But the dismissal is unlawful only if it is discriminatory within the meaning of section 6 in that it is connected to the employee’s disability. ……Thus, in my view, a dismissal is not discriminatory if summary dismissal is justified. Putting that in another way, summary dismissal, if justified, provides a complete defence to an action for discrimination.’ (my emphasis)
20. H H Judge H C Wong in Lam Wing Lai’s case and Chan Choi Yin Janice’s case referred to the ‘but for’ test, but also cited Nagarajan’s case and the House of Lords decision in Khan’s case with approval.”
39.She concluded:
“21. In the circumstances, I apply the ‘but for’ test read in light of the House of Lords’ approach in Khan’s case and clarified by H H Judge Muttrie and H H Judge To in L’s case and Aquino Celestina Valdez’s case respectively. The essential question is : in all the factual circumstances of the case, what is the real and effective cause of the act complained of? Common sense tells us that not all of the facts constitute a cause for the prohibited act that leads to legal liability. Other than obvious cases where there can be no reasonable or innocent explanation other than the prohibited act, to show causal connection, the causative factor must be an effective causa causans which is more than a background event, but it need not be the only or predominant cause. In my view, this is consistent with the test applied by H H Judge Saunders in Chang Ying Kwan’s case, but if it were not so, I respectfully decline to follow his approach.” (emphasis added)
40.It was in reliance of the above conclusion that Ms Herbert submitted that the “but for” test and the “real cause” or “causa causans” test are not mutual exclusive but compatible and complement each other.
41.With respect, I would prefer to put it in another way. In my view, the “real cause” test or the “causa causans” test is a test which is more stringent than the “but for” test. There are of course cases in which the “but for” test would be sufficient. The Chan Wah case is such an example, in which the electoral arrangements could not have admitted for any explanation other than gender. In such cases, the ground for the treatment complained of is inherent in the act itself. However, there are also other cases in which a more stringent test is required so as to find out, for example, whether the less favourable treatment was given “on the ground of race”.
42.What Johnson Lam J (as his Lordship then was) stated in M v Secretary for Justice [2009] 2 HKLRD 298 is instructive in this regard:
“98. […] a plaintiff needs to show that the treatment was ‘on the ground of his disability’.
99. Mr Harris submitted that the causation element can be satisfied by the ‘but for’ test and he cited Secretary for Justice v Chan Wah (2000) 3 HKCFAR 459 to support his contention. That was a decision on a claim advanced under the Sex Discrimination Ordinance Cap.383. The wordings under Section 5(1)(a) of that Ordinance are similar to Section 6(a) of DDO. At p.476B to F, the Chief Justice said the ‘but for’ test enunciated by Lord Goff in R v Birmingham City Council, ex p Equal Opportunities Commission [1989] 1 AC 1153 at p.1194A-C was the correct test.
100. It is to be noted that on the facts of Chan Wah, the challenge was made in respect of the electoral arrangements for village representatives. As such, it was a challenge to an existing system rather than a specific decision by a person or a corporate body against an individual. The same can be said in relation to the challenge in R v Birmingham City Council, ex p Equal Opportunities Commission [1989] 1 AC 1153 and James v Eastleigh Borough Council [1990] 2 AC 751 in which Lord Bridge said the test was objective (also endorsed by the Chief Justice in Chan Wah).
101. Subsequent cases in relation to challenges in respect of specific decision against an individual show that in those instances one must have regard to the mental process of the alleged discriminator. In Nagarajan v London Regional Transport [2000] 1 AC 510, Lord Nicholls said at p.510H to 511B:
‘To be within section 1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious case, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.’
102. His Lordship went on to explain the distinction between this crucial question and an inquiry into the intention or motive behind the discrimination on racial ground. At p.511C to D, it was said:
‘For the purposes of direct discrimination … the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator’s motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant’s job application was racial, it matters not that his intention may have been benign.’
103. It is in this light the test of Lord Goff in R v Birmingham City Council, ex p Equal Opportunities Commission [1989] 1 AC 1153 and the remarks of Lord Bridge in James v Eastleigh Borough Council [1990] 2 AC 751 were to be understood. In connection with the latter, Lord Nicholls explained at p.511G to H:
‘In stating [that the test was objective Lord Bridge] was excluding as irrelevant the (subjective) reason why the council discriminated directly between men and women. He is not to be taken as saying that the discriminator’s state of mind is irrelevant when answering the crucial, anterior question: why did the complainant receive less favourable treatment?’
104. To the same effect is the judgment of Lord Steyn in Nagarajan at p.520B to 521A.
105. Bearing in mind human nature, there is always room for subconscious discrimination. Lord Nicholls alluded to that at p.511H to 512D. In particular, at p.512A:
‘An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realized it at the time or not, race was the reason why he acted as he did.’ (My emphasis)
And at p.512C,
‘Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination.”
106. See also subsequent decisions of the House of Lords in Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR 1947 at p.1954 para.29 per Lord Nicholls and Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 ALL ER 26 at p.45 para.55.
107. In my judgment, these recent authorities support my Lord’s conclusion that one needs to ask the basis on which the alleged discriminator made the decision on differential treatment. Also, with the recognition of subconscious or even benevolent discrimination, I agree with my Lord that there is no need to prove that the alleged discriminator was consciously unfair.”
C4. Drawing of inference
43.It has also been recognised that it may be difficult for the plaintiff in race discrimination cases, who bears the burden of proof, to prove the claim, because such discrimination is usually not overt and thus the plaintiff would have to rely predominantly on the drawing of inferences. In North West Thames Regional Health Authority v Noone [1988] ICR 813, the English Court of Appeal held that:
“In these cases of alleged racial discrimination it is always for the complainant to make out his or her case. It is not often that there is direct evidence of racial discrimination, and these complaints more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. For myself I would have thought that it was almost common sense that, if there is a finding of discrimination and of difference of race and then an inadequate or unsatisfactory explanation by the employer for the discrimination, usually the legitimate inference will be that the discrimination was on racial grounds.” (at 822F – G)
44.In King v Great Britain-China Centre [1992] ICR 516, the English Court of Appeal considered several authorities and extracted the following principles and guidance:
“(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.
(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in.’
(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.
(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v Noone [1988] I.C.R.813, 822, ‘almost common sense.’
(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”
(at 528F – 529C)
45.The King’s case had been cited with approval in various Hong Kong cases including Yeung Chung Wai v St Paul’s Hospital [2006] 3 HKC 521, in which Her Honour Judge M Ng (as her Ladyship then was) had the following to say:
“31. I am of the view that the evidential burden does not shift to the defendant employer at any stage. However, the court should approach the question of proof with common sense bearing in mind the standard of proof is on the balance of probabilities and it is sometimes not easy to have direct evidence of discrimination. Once the plaintiff establishes the relevant primary facts on the balance of probabilities, the court in drawing the appropriate inferences will have to consider and weigh the explanation (if any) given by the defendant.”
D. THE APPROACH TO BE ADOPTED
46.In her closing submission, the claimant’s counsel suggested that Mr Weyman Ngai (“Mr Ngai”) should be adopted as the actual comparator in the present case.
47.This submission was met with strong objection from the respondent’s counsel, who in turn submitted that:
(1) The claimant’s proposal to use Mr Ngai as the actual comparator should not be allowed because this approach had never been mentioned in the pleading, evidence or even in Ms Herbert’s opening submissions. This amounts to ambush;
(2) The relevant circumstances in Mr Ngai’s case were different from those of the claimant, and therefore he could not be an appropriate comparator.
48.On the “pleading point”, the respondent’s counsel relied on the case of Singh Arjun by his next friend Singh Anita Guruprit v Secretary for Justice & Another (DCEO 9/2011, unreported, 30 May 2016) in which the learned Judge referred to what the Chief Justice said in Kwok Chin Wing v 21 Holdings Ltd [2013] 16 HKCFAR 663 at paragraph 21 as follows:
“It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited [[2005] 2HKC 638, at 643G-H (para 6(1))]. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced.”
49.The principles reiterated by the learned Chief Justice are of course trite. However, it should be noted that the claimant’s claim herein was made pursuant to the District Court Equal Opportunities Rules (Cap. 336G) (“the New EO Rules”) which were introduced in November 2014. Those rules were made with the objectives of providing more flexibility for parties to equal opportunities proceedings and expediting the adjudication of equal opportunities claims by replacing formal pleadings with more informal notices of claim and notices of response. In the Consultation Paper on the Proposed Legislative Amendment to the District Court Equal Opportunities Rules issued by the Judiciary in July 2013 (which eventually led to the enactment of the New EO Rules), it was stated that:
“4. Arising from a review on the institutional, legislative and procedural frameworks, rules and practice of the District Court in the adjudication of EO claims, the Judiciary issued in September 2011 a consultation paper on the recommendations to improve the procedure for adjudication of EO claims. We put forward seven recommendations to –
(a) Reduce delays commonly found in EO claims;
(b) Improve the cost-effectiveness of the procedure for adjudication of EO claims by reducing the number of unnecessary interlocutory applications; and
(c) Further simplify the procedural rules after the implementation of the Civil Justice Reform in April 2009.
5. […]
6. The Judiciary is making preparations for implementing the recommendations. One key recommendation, namely the replacement of technical pleadings by more informal claim and response forms, requires legislative amendments.
7. At present, the procedures and practice of proceedings in the District Court, including EO proceedings, are generally based on the Rules of the District Court (‘RDC’) (Cap. 336H) […]
8. In practice, the present procedures and the practice for EO claims are very similar to those for ordinary civil claims conducted in the District Court.
9. Specifically, a pleadings system as set out in the RDC is in place whereby a statement of claim, defence and reply are filed with the court according to statutory timelines by parties in each case to set out their claims and defences. Pleadings and their amendments are subject to various technical rules as laid down in Orders 18 and 20 of the RDC and others. Such requirements have resulted in a lot of interlocutory applications such as applications to amend pleadings and to seek extension of time to file pleadings, etc.
10. As pointed out in the Judiciary’s earlier consultation paper, the unique nature of EO claims makes it difficult for technical pleadings to be used, especially for litigants in person. As EO claims usually arise out of a series of incidents over a considerably long period of time, it may be difficult for the complainant to decide the extent of particulars to be included in the pleadings, without losing sight of the most important facts of the case.
11. Moreover, to determine whether there is unlawful discrimination, the court needs to compare the treatment suffered by the complainant with that of a ‘comparator’ i.e. a person who is in the same, or not materially different circumstances as the claimant but without features(s) or not in a similar status that cause(s) the alleged discrimination. It is difficult for the complainant to identify the potential ‘comparators’ for the court’s consideration during the pleadings stage. It is normally only during the later stage of the court process (e.g. after the exchange of witness statements between the parties) that such comparator(s) can be identified.
12. The Judiciary therefore proposes to amend the [District Court Equal Opportunities Rules] to simplify the process for pleading an EO claim. The more complicated procedure requiring the filing of technical pleadings is proposed to be replaced by a simpler informal process. In particular, technical pleadings will be replaced by informal claim and response forms as prescribed under the proposed legislative amendments. Where necessary, the court may, either upon parties’ application or on its own volition, direct that the formal pleadings process be used in any particular case.” (emphasis added)
50.It can be seen that one of the purposes of introducing the New EO Rules was to simplify the procedures of equal opportunities claims and one of the ways to achieve this was to replace the pleadings system with more informal claim documents. Unless the court has ordered in a particular case that the Rules of the District Court shall apply to and in relation to any action or proceeding as if Part 2 of the New EO Rules had not been enacted, the strict rules of pleadings should not be applicable.
51.While this reform has given more flexibility to the pleaders, in my view, as a matter of fairness, the complainant is still required to state adequately what his case is about so that the other side would be able to prepare the defence properly and not be taken by surprise, and it is in this sense that the trite principles on pleadings are still applicable.
52.Having said that, when it comes to the naming of actual comparator(s), as recognised in the Consultation Paper, it is normally only during the later stage of the court process (e.g. after the exchange of witness statements between the parties) that the suitable comparator(s) can be identified.
53.Therefore, I would not accept the respondent’s complaint about the claimant’s failure to state the identity of actual comparator in the Notice of Claim and in his witness statement. However, I do accept the submissions made by the respondent’s counsel that the claimant’s counsel should have been able and should have stated clearly in her opening submissions that the claimant was minded to use Mr Ngai as the actual comparator. It is apparently undesirable for her only to make this clear in her closing submissions. It was unfair to the respondent.
54.Be that as it may, I do not think it matters much because it appears to me obvious that Mr Ngai is not an appropriate actual comparator.
55.In an attempt to show how the claimant was less favourably treated, Ms Herbert made the following points in her written closing submissions:
“71. Following Mr. Haden’s termination Mr. Ngai became blasting team leader for a time before the joint venture determining ‘that he did not have adequate knowledge to lead the blasting team by himself’ [TB1/109/48]. Prior to this though, he was responsible for following a blast firing protocol agreed by all parties in relation to a blast, however, the blast was fired whilst an MTR train was in the blast zone. This resulted in the joint venture not being able to blast for 3 weeks. It is submitted that this can only be described as a grave error in communication and yet Mr. Ngai was never terminated for it [Day 2/PM]. It was argued by Mr. Torka that the issue was not Mr. Ngai’s fault, but the event has to be read in line with the fact that all parties had approved the protocol to begin with. Further, Mr. Torka, not being able to read Cantonese had no idea himself whether such protocol was followed or not.
72. […] it is submitted that he was treated less favourably than an actual comparator, namely Mr. Weyman Ngai who demonstrated incompetence (designing blasting cages too heavy to be lifted), contributed to the ‘two-way’ communication issue and then made a communication error, one much more detrimental than Mr. Haden’s alleged communication problem. However, it was Mr. Haden who was terminated, Mr. Ngai was not terminated, and was even promoted initially.”
56.Ms Herbert’s submissions on Mr Ngai’s “communication” problem was made on the basis of the claimant’s evidence. In paragraph 40 of his witness statement, he stated that:
“I understand that not long after I left the Project, Mr Ngai issued an instruction for a tunnel blast to be fired without permission from MTR while a passenger train passed through the blast area. MTR subsequently withdrew their consent to blasting and Mines Division (CEDD) suspended Leighton’s blasting permit. Despite this serious breach of safety and act of misconduct / negligence, Mr Ngai’s employment was not terminated.” (emphasis added)
57.This is clearly hearsay evidence. Not only that, the claimant did not even state where he got the information from.
58.The allegation of the claimant had been refuted by Mr Torka, who explained that the incident referred to by the claimant was caused by imprecision in the communication protocol in Cantonese provided by MTR. He said Mr Ngai had followed the script and all protocols, and it was not a “communication problem” as such. When Ms Herbert suggested to him that Mr Ngai’s communication issue with MTR was much more serious than that of the claimant, Mr Torka disagreed, and answered that they were two different matters.
59.Although Mr Torka did not know Cantonese, and his knowledge as to whether Mr Ngai had followed the said communication protocol in Cantonese came from his colleagues in the Project (in other words, also hearsay evidence), I have no hesitation in accepting his evidence, because it must be within his job duty to get the clearest information about what had happened.
60.There is therefore no basis for the claimant to allege that Mr Ngai had the same “communication problem”.
61.Furthermore, Mr Ngai’s alleged “communication problem” was obviously different from the claimant’s problem in nature (as we shall see in the latter part of this Judgment, the claimant’s problem was more about his inter-personal relationship with his colleagues and his ability to work with others as a team). It is an over-simplified approach to say that both problems are of the same nature simply because both were described as “communication problems”.
62.In such circumstances, I find it more appropriate to concentrate primarily on the question of whether the claimant’s termination of employment was due to him being a non-Chinese.
63.Indeed, it seems from the structure of Ms Herbert’s written closing submissions that the “reason why” issue was also her main focus as she only inserted her argument on comparator after she had discussed the various matters which she sought to rely on in asking the court to draw an inference that the claimant’s employment was terminated on the ground of his race.
E. THE CLAIMANT’S COMPLAINT – AN OVERVIEW
64.Ms Herbert for the claimant, in the very first paragraph of her written closing submissions, gave the following introduction, which in my view has summed up nicely what the claimant’s case is about:
“Francis Haden was the most competent blasting person at Leighton. He was brought onto the Project as the Blasting Team Leader, a role that was required under the contract between the HKSAR Government and the Joint Venture. Under that role he was required to be fully responsible for the control and safety of the blasting, but he was undermined and bypassed in his role. Rather than support him, the management at Leighton let his position be bypassed and then solely blamed him for the communication issues in the team. He was culturally and racially different from the site team and from the surface blasting team, where the issues predominately arose. So, Mr. Haden was terminated. Not because he was the poor performer, but because he was culturally and racially different from the rest of the surface blasting team and as such, they would not communicate with him. This all happened against a backdrop of racial hostility where racially and culturally inappropriate words such as “gweilo” and “foreigner” undermined any true integration between races within the Joint Venture.”
65.Ms Herbert accepted that there was no direct evidence that the claimant was dismissed on the ground of his race. She asked the court to make the following findings on primary facts and then infer therefrom that the claimant was dismissed on such a ground:
(1) The claimant was very competent and technically very good at his job. He was the most competent blasting person at Leighton. He had successfully negotiated for the use of the Kowloon Explosives Depot and that was a major win in the Project and his performance reviews/appraisals were all positive;
(2) The claimant had been bypassed and his role as the Blasting Team Leader usurped;
(3) The claimant had raised the issue of racism at his meeting with Mr Torka on 27 February 2017;
(4) The term “gweilo” was said on the Project;
(5) The lack of process in the termination.
66.I will consider the above matters in turn first, and then decide whether the findings of fact to be made would be adequate to support an inference that the claimant’s employment had indeed been terminated on the ground of his race as alleged.
F. FINDINGS OF PRIMARY FACTS
F1. The Claimant’s Job Performance
67.Ms Herbert submitted in paragraph 32 of her written closing submissions that:
“[…] Mr. Haden was very competent and technically very good at his job. Due to his actions the Project enjoyed the significant boon of being able to use the KED. Throughout his time at the Respondent, Mr. Haden received positive appraisals and, other than a minor comment in relation to the HATS Project back in 2014 there is no contemporaneous written document that shows there was an issue of the magnitude now being suggested by the Respondent.”
68.As far as the claimant’s technical ability is concerned, I do not think there is any dispute that he was a very able person. However, with greatest respect to the claimant, there was ample evidence which showed that he was not a person who could maintain good working relationship with others:
(1) Mr Darren Grant (“Mr Grant”), the Construction Manager (Tunnel) of the Project at the material time, gave evidence (which I accept) that:
(i) When he worked with the claimant in another project known as the XRL Contract 822 Tse Uk Chuen to Shek Yam Tunnels (“the XRL 822 Project”) back in 2010, he found that the claimant was of “an abrasive character and short-tempered, and that it was difficult to talk to him when problems arose”[2];
(ii) The claimant also had difficult working relationships with some of his own team members at different times in the XRL 822 Project. His relationship with a Mr Raymond Wong was so bad that the claimant moved office as they could not co-exist in the same office, despite the fact that they were members of the same team;
(iii) The claimant also had particular difficulties with the MTR team in the XRL 822 Project, and it was due to the claimant’s issues with his own team and the MTR team that resulted in his leaving the XRL 822 Project;
(2) According to Mr Torka, the claimant had to leave the XRL 822 Project because of the request of the MTR Corporation. He was then transferred to another project (“Project HATS”). However, it can be seen from emails discovered in the present action that the blasting manager of Project HATS had expressed his view that the claimant had to be replaced for the benefit of that project;
(3) In Mr Torka’s witness statement, he stated that:
“23. Since joining the Project, Mr Haden behaved as if he had bias against the L-CS Joint Venture team members seconded from CS and could not work with them. From time to time he complained about CS loudly in the office and also openly in meetings with external parties. His dissatisfaction with the colleagues from [China State] was so visible that AECOM had complained to me that his dismissive attitude towards other team members disrupted work within the L-CS Joint Venture. I recall two instances where the Chief Resident Engineers from AECOM, Mr Chan Kai Yuen and Mr Kristian Murfitt, complained to me that Mr Haden was unfriendly at meetings, making unfound accusations against personnel from [China State] in attendance. In fact, his dissatisfaction with [China State] was so serious that I recall he once told me that he had seated Mr Ngai in a particular position in the office deliberately so that he could observe Mr Ngai’s computer screen to check if the Mr Ngai did things secretly for [China State] […]
24. The situation had become so bad that starting from late 2016, the site formation and tunnel construction teams were reluctant to deal directly with Mr Haden on work-related matters because of his temperament, and asked me and others to communicate with him. This was unsatisfactory, and seriously disrupted the progress in preparing the blasting submissions for the Project. While complaining both internally and externally about [China State], he totally disregarded the negative impact of his unprofessional and unconstructive conduct in a joint venture project […]
25. For the blasting team in particular, I recall that in around January 2017, Mr Shi Da (Site Manager) told me that Mr Ngai and Mr Liao had complained to him that they had not been properly utilised in the Project because Mr Haden had not assigned proper work to them, and had even excluded them from work-related information. It was since around this time in January 2017 that I started to monitor and evaluate Mr Haden’s performance and to consider whether his continued involvement in the Project would be counter-productive and detrimental to its progress and timely completion. As the blasting submissions had then yet to be finalised, I kept the matter under careful review.”
69.The claimant denied that he had bias against China State as alleged by Mr Torka. He pointed out in his supplemental witness statement, among other things, that:
“8. Mr Torka states at paragraph 24 that my communication skills were so bad that site formation and tunnel construction teams were reluctant to deal with me on work related matters. This was not my experience nor is it borne out by the facts. In particular the blasting permit for the tunnel works was obtained in record time.
9. The CBARs for the surface works were substantially delayed due to [China State] constant changes / re-work to the rock slope designs which was exacerbated by the fact that Aurecon were not paid by the Respondent at one point for the re-worked CBARs causing them to stop work for a period of time.
10. In answer to the allegation made that I had bias against [China State] I consider this to be an attempt by the Respondent to change around the facts and blame the victim. I never had any bias towards CS. I expressed frustration with the repeated changing of construction sequences by the surface team (forcing me and Aurecon to re-work CBARs and BMS submissions) and the lack of information from [China State]. By contrast, I was able to get all of the information I needed on the tunnel team which, as I say, enabled us to secure the permit in record time.
11. I also expressed frustration at [China State] breach of various tendering protocols regarding explosive suppliers. I expressed frustration with the work produced by Mr Ngai. For the reasons set out at paragraphs 38-40 of my statement, my concerns with Mr Ngai, his performance and the quality of his work were legitimate. It is correct that I sat Mr Ngai in the office in a position where I could see his computer screen, but this was for the purpose of supervision and keeping an eye on the work he was doing.”
70.In my view, while the claimant had tried to give some justifications on his attitude towards China State and Mr Ngai, he in effect had admitted what Mr Torka said (apart from his point on bias).
71.As a matter of fact, by the end of the meeting between the claimant and Mr Torka on 27 February 2017 (which was originally planned by Mr Torka to be an “exit interview” – in which the claimant would be formally given a termination letter by which his employment would be terminated with the payment of one-month salary in lieu of notice), it was agreed that the claimant should improve on the following areas:
(1) Handover responsibilities of Site Formation works to Mr Ngai, but render full support to and share all necessary information with the Site Formation Team;
(2) Enhance the communication and improve the relationship within the Blasting Team, particularly, with the JV partner staff;
(3) Refrain from expressing internal disagreement/disputes, or discrediting members of the team in front of external persons including the Engineer, client, authorities, consultants or suppliers;
(4) Apply service attitude/be supportive to all members of the construction team that require input from the blasting team.
72.The above points were extracted from an email sent by Mr Torka in the night of 27 February 2017 to Ms Jessica Poon, the Reward Manager of the respondent, in which Mr Torka explained that he was minded to give the claimant a final warning instead of terminating his employment right away as originally planned, on the basis of the agreement on the part of the claimant to improve on the above areas. I will quote this email in full in the latter part of this Judgment. For the present purpose, it suffices for me to say that I accept Mr Torka’s evidence on the claimant’s attitude towards his colleagues especially those from China State. As Mr Torka put it while he was giving evidence in court, it is no use to have the best person in the world if he cannot work with a team.
73.To conclude, it is my finding that:
(1) Technically, the claimant was very competent and very good at his job;
(2) However, he had demonstrated that he could not maintain good working relationship with his colleagues and others, and as a result he had developed strained relationship with others especially the members of the Blasting Team.
F2. Bypassing and Usurping of the Claimant’s Role
74.Another topic which the claimant asked the court to look at and from which to infer that his employment had been terminated on the ground of his race is the allegation that he had been bypassed and his function as Blasting Team Leader usurped. He categorised the actions undertaken by the respondent, the respondent’s staff and the Joint Venture staff into the following sub-headings:
(1) Hiring of the Blasting Team;
(2) Team not getting back with information/refusing to come to meetings and/or workshops;
(3) The meeting on 9 February 2017, the subsequent instruction to amend CBARs and the subsequent lack of communication in relation to the contents and outcomes of that meeting; and
(4) Mr Torka’s actions.
75.Counsel for the respondent took the point that matters under sub-paragraphs (1), (2) and (4) above had never been pleaded as events to support the allegation that the claimant had been undermined or bypassed. As I said above, although the current system has given more flexibility to the pleaders, as a matter of fairness, the complainant should still state adequately what his case is about in his Notice of Claim. Indeed, Ms Herbert has accepted fairly that insofar as those complaints which are found not to have been pleaded, she would agree not to rely on them. I would therefore, in respect of those 3 matters under attack, consider whether they had been adequately pleaded in the following sub-sections before I go into their merits.
76.However, before I consider each of the 4 categories of actions, I would like to deal with a point made by Ms Herbert as a matter of principle. In the section “Mr Haden’s Role” in her written closing submissions, having referred to certain contractual provisions in the Contract between the HKSAR Government and the Joint Venture (“the Contract”), Ms Herbert submitted that:
“To summarise, the points to be derived from the above are that Mr. Haden’s role required him to be fully responsible for the blasting works and certain tasks, for example the CBARs and BMSs came under his responsibility. Delegation was permitted but only in relation to site supervision tasks and only if he determined they were to be delegated” (at paragraph 28)
77.The contractual provision which she relied on reads:
“[…] If the Blasting Team Leader wants to delegate the site supervision of the blasting operation to his team, the Contractor shall employ on site a competent person to supervise all blasting operations at each blasting area/face as Blasting Engineer, with at least 4 years’ experience in blast design and supervision of blasting work […]” (Clause 1.12G(1))
78.She also sought to rely on Mr Lai’s evidence that it was up to the claimant, as Blasting Team Leader, to decide how he should assign the worker(s) and Mr Torka’s evidence that the claimant remained fully responsible and in control of the safety and quality of the blasting works.
79.With greatest respect to Ms Herbert, her argument is totally misconceived.
80.First of all, the quoted part of Clause 1.12G(1) of the Contract only stipulated that in the event the Blasting Team Leader would like to delegate site supervision duties to his team, there would be an obligation on the part of the Joint Venture to engage a “competent person” (as defined in the same clause) to supervise all blasting operations. This Clause certainly did not have the implication that “other than site supervision the duties are non-delegable”[3].
81.To the contrary, at the beginning of Clause 1.12G(1) of the Contract, it was specifically stipulated that:
“The Blasting Team Leader shall be assisted by his team to carry out the following duties for the blasting works […]
Procedural Duties
(a) Take full responsibilities and control on the safety and quality of the blasting works.
(b) Prepare and update the Contractor’s Blasting Assessment Report, for the approval of the Engineer and the Commissioner of Mines.
(c) Prepare and update the Blasting Method Statement for the approval of the Engineer and the Commissioner of Mines.
[…]”
(emphasis added)
82.The above provision supports Mr Lai’s evidence that the Blasting Team Leader simply was not expected to discharge his duties, including his duty to prepare the CBARs and the BMS, all by himself, despite the fact that he remained fully responsible for those important documents.
83.Furthermore, I do not agree with Ms Herbert’s suggestion that only the Blasting Team Leader could delegate tasks to the Blasting Team members. What Mr Lai and Mr Torka said could not be interpreted to mean that no one other than the Blasting Team Leader could do that.
84.I now turn to consider the 4 categories of actions raised by the claimant.
F2.1 Hiring of Blasting Team
85.Under this category, Ms Herbert argued in the following way in her written closing submissions:
“34. It is clear from the Contract that delegation lies is within the prerogative of the Blasting Team Leader and it was agreed by Mr. Torka that:
a. Mr. Haden as Blasting Team Leader remains fully responsible and in control of the safety and quality of the blasting work;
b. Anyone who he delegates to he must be comfortable with performing the job; and
c. That is why one would expect the Blasting Team Leader to be involved in the recruitment of blasting engineers.
[Day 2/PM]
35. Mr. Torka claimed that Mr. Haden was consulted in relation to Mr. Jiao (sic) but said that Mr. Weyman Ngai was interviewed by Mr. Torka himself, following which he claimed to have asked Mr. Haden for input and Mr. Haden raised only a concern in relation to Mr. Ngai’s work at Orica. However, the contemporaneous documents paint a slightly different picture. The New Position request forms show that Mr. Haden signed off on James Mulholland [TB4/847] but in relation to Mr. Jiao (sic) whilst Mr. Haden’s name appears on the form, his signature does not [TB4/848] and in relation to Mr. Ngai his name and signature are absent [TB4/803]. Further, Mr. Torka agreed that given that he instructed Mr. Haden to call Mines Division for feedback on Mr. Ngai and that he did not do so himself, the only person who would know what Mines Division said about Mr. Ngai would be Mr. Haden [Day 3/AM]. A spreadsheet [TB6/1282] shows various comments about candidates and for Mr. Weyman Ngai it states ‘Not recommended for employment by internal Senior Leighton Manager (Justin Taylor attached to this Project) and external references inc Mines Division (cannot quote Mines however as conversation was off the record)’. However, Mr. Torka denied being told the information contained therein. Mr. Haden has always maintained that he did not agree to the hiring of Mr. Ngai [TB1/72/38-39] and the matter was not explored during his cross-examination.
36. In relation to the hiring of Blasting Engineers Mr. Haden made reference to Mr. Leung not wanting any non-Chinese Blasting Engineers on the Project [TB1/71/36] this was also referred to on the tape recording between Mr. Torka and Mr. Haden [TB4/923].
37. Mr. Haden remained fully responsible for matters such as safety and he therefore had to be satisfied with who he was delegating to. However, despite this, he was left out of the decision making and this resulted in the Joint Venture hiring Mr. Ngai. All this sits against a background of a senior staff manager of the Joint Venture articulating a reluctance towards hiring non-Chinese Blasting Engineers.”
86.It seems that two points had been made here:
(1) There had been a reluctance on the part of the Joint Venture to hire non-Chinese Blasting Engineers; and
(2) Mr Ngai was employed as a Blasting Engineer although the claimant did not agree with such an employment.
87.As aforesaid, the respondent objected against the claimant raising these issues because it was said that they were not relied on in the Notice of Claim.
88.I will therefore deal with this pleading point first.
89.Ms Herbert argued that they had been pleaded in paragraphs 17 to 19 of the Notice of Claim which read:
“17. At around October 2016, the Claimant had a series of verbal discussions with Mr Torka regarding the recruitment of blasting personnel for the Project. During the course of these discussions Mr Torka told the Claimant that he (Mr Torka) had been told by Mr Leung that CS did not want any non-Chinese blasting engineers involved with blasting works.
18. The Claimant had difficulty in recruiting blasting personnel due to the paucity of suitably qualified local surface blasting engineers. Of the CV’s provided to him by the L-CS Joint Venture, the potential recruits’ experience was at the level of ‘blasting supervisor’ as opposed to the higher level of ‘blasting engineer’ that the Project required. The Claimant therefore, made enquiries to CEDD’s Mine’s Division for other suitable candidates and approximately five names were provided. Unfortunately, these engineers had either left Hong Kong or were otherwise unavailable. The Claimant therefore searched for overseas candidates and forwarded to Mr Torka two CV’s from Australian engineers who had the appropriate qualifications and experience. Mr Torka replied saying they could not be hired because they would not be able to secure work permits. The Claimant does not consider this was a genuine reason for rejecting the candidates out of hand. It should be noted that of the blasting engineers who were assigned to the Project, one was a Hong Kong local and the other was from Mainland China and required a work permit.
19. During January 2017, Mr Darren Grant, Construction Manager (Tunnels) showed an email to the Claimant that had been sent to him from Mr Leung, where Mr Leung said that the award of the tunnel-drilling sub-contract to a non-Chinese subcontractor would pose communication issues. The Claimant avers that the hiring of non-Chinese personnel should and would not have posed any communication issues or difficulty to the Project and that this further indicated a preference for non-Chinese workers to not be involved on the Project.”
90.It is plain that the claimant’s allegation that he did not agree with Mr Ngai’s recruitment was not mentioned in the Notice of Claim at all. Therefore, the claimant should not be allowed to rely on this matter in the present case. On the other hand, the “reluctance on the part of the Joint Venture to hire non-Chinese Blasting Engineers” was obviously pleaded in paragraph 17 of the Notice of Claim.
F2.1.1 Mr Chris Leung’s reluctance to hire non-Chinese Blasting Engineer
91.In paragraph 36 of the claimant’s witness statement, he stated that:
“I clearly remember that Mr Torka saying to me that Mr Leung had informed him that Mr Leung / China State did not want any non-Chinese blasting engineers involved with the blasting works. Although Leighton has denied that Mr Torka said this to me, I specifically referred to the discussion during my meeting with Mr Torka on 27 February 2017 […]”
92.Under cross-examination, Mr Torka had explained why Mr Leung had expressed such a view. Counsel for the respondent had helpfully set out his answers given as follows in the respondent’s reply submissions (the accuracy of which Ms Herbert did not dispute):
“… the comment from Chris Leung regarding non-Chinese blasting engineers was related to the discussion I had with him … it was related to how the site formation work would be executed, and site formation work other than the tunnel would be sublet to subcontractors, the local subcontractors for Hong Kong, that would supply all resources to the project, including shotfirers, because it was expected that these shotfirers would be local, predominantly Cantonese-speaking, not English, Chris Leung expressed his wish or requirement that blasting engineers would be able to communicate in Cantonese ...”
“You are addressing a wrong level. The blasting engineer surface side working for Haden were all capable of communicating in dual languages, they can do English and Cantonese but they had in day to day work with shotfirers and subcontractors and those shotfirers would most likely not be able to communicate in English but rather communicate in Cantonese so therefore it was essential for blasting engineer to be people who are able to communicate in Cantonese.”
93.Indeed, it had been shown that Mr Leung had endorsed the employment of Mr Mulholland (who was recommended by the claimant) as the Blasting Coordinator without any expression of reservation, even though Mr Mulholland was a non-Chinese.
94.In Mr Torka’s witness statement, he had also explained that:
“[…] Specifically, I told [the claimant] that apart from technical capability, the L-CS Joint Venture considered three criteria important in evaluating candidates, namely bilingual or language ability, experience in Hong Kong and cost. It was our common understanding that:
(a) local shotfirers involved in undertaking actual site formation works often could only speak Cantonese, so we wanted a candidate able to communicate with shotfirers in Cantonese and with management in English;
(b) compared with overseas, local blasting operations are extremely restrictive and subject to stringent conditions imposed by the Commissioner of Mines via blasting permit application process, and even if a candidate has prior experience in blasting operation overseas, he or she would take a long time to understand the relevant local regulations and practice, so preference should be given to recruiting local candidates whenever possible;
(c) it would not make sense to hire from overseas with extra costs on an expatriate package when there are competent Blasting Engineers readily available locally.”
95.The claimant did not make any reply to the above allegations in his supplemental witness statement.
96.Having considered the above matters in the round, I accept the claimant’s evidence that Mr Torka did inform him about Mr Leung’s preference in the selection of Blasting Engineers, but on the other hand, I also accept Mr Torka’s explanation as to the reason behind such a preference, namely, to ensure that the Blasting Engineers would be able to communicate with the local shotfirers in Cantonese.
F2.1.2 Mr Ngai’s recruitment
97.Despite my view that this issue was not pleaded, I would deal with the claimant’s allegation nonetheless, in case I am wrong in prohibiting the claimant from relying on this matter.
98.I will start with what the claimant stated in his witness statement as follows:
“30. One of my first duties on the Project was to recruit a blasting team. This was not an easy task since there was a general lack of requisite experience (particularly surface blasting) within the local Hong Kong workforce and I had a number of discussions with Mr Torka on this subject during the period August – October 2016.
31. As at 9 September 2016 I still needed to fulfil three core roles, namely, two surface blasting engineers and one underground blasting engineer. As I explained in an email to Mr Torka on 9 September 2016, there was a recurring theme that candidates experience was limited to supervising, but not actually producing blasting designs. This meant that they could not be hired as blasting ‘engineers’ but rather only to the lower role of ‘blasting supervisor’. I sought advice from the government (Mines Division CEDD) as to who they had previously appointed as surface blasting engineers. The list they provided was limited.
32. I identified Mr Mulholland as a potential Blasting Coordinator since he has multiple skills that could be utilised and which I set out in my email to Mr Torka on 9 September 2016. On 13 September 2016 I provided to Mr Torka the CVs for Mr Liao, Mr Mulholland and Daniel Andrews. I also set out my concerns regarding the CVs I had received for the Tunnel Blasting Engineer role which had been provided to me by Mr Leung. Unfortunately, there were question marks regarding the experience of each of the potential applicants for the role.
33. As the Project progressed minor tensions about fulfilling the open roles started to develop. For example, on 8 October 2016, Mr Torka sent an email to chase for the appointment of a Blasting Coordinator despite me having put forward Mr Mulholland one month earlier. I did not have authority to make final hiring decisions. My Torka only signed off the appointment of Mr Mulholland on 10 October 2016.
34. […]
35. To ensure that the hiring progressed and the everyone was on the same page, on 13 October 2016 I emailed Mr Torka attaching spreadsheets[4] of then proposed and recruited persons for the Project’s blasting roles. At that time, I only needed to fill the role of Underground Blasting Engineer. I expressed my reservations with the CVs of those that had been shortlisted and whether we could recruit suitably qualified and reliable persons locally. We needed to ensure that any candidate would pass Leighton’s hiring requirements and also the requirements set down by AECOM and Mines Division (CEDD), with their final sign-off. This is something that Mr Torka was well aware of at the time and should have been aware of based on his experience on former drill and blast tunnel projects in Hong Kong.
36. […]
37. I note that Leighton have tried to justify not hiring from outside on the basis that employment visas would be required, and they would need more expensive expatriate packages. However, for example, Mr Liao is mainland Chinese and required a visa to work in Hong Kong. Nevertheless, Mr. Torka and I proposed him for a blasting engineer role (see email from Mr Torka to Mr Freeman dated 22 September 2016). While I did not have full insight into the contractual terms offered to Mr Liao, I do not believe that he was hired on an expatriate package or that substantial extra costs were incurred in hiring him.
38. I was sent the CV of Mr Ngai. I did not know Mr Ngai, but I was cautioned against hiring him by various people including Justin Taylor, a Geotechnical and Risk Manager on the Project and John Butchart, an explosives supplier. Also, in discussions with Mines Division (CEDD) it was clear that they did not hold a favourable view of him. The impression I received from conversation was one of low technical competence and people who had worked with him called into question his ability to produce CBARs and BMSs. This gave rise to me having doubts about his ability to do the job properly and, most importantly, safely.
39. While Mr Ngai’s CV passed over my desk, I neither refused nor endorsed him to he hired. I did not interview him, and I was not involved in the decision to hire him. I did not sign his New Position Request form. Mr Torka told me that he had appointed Mr Ngai without me agreeing and said it was a purely ‘commercial decision’. By this, I understood that Mr Torka’s focus was on filling the roles for the Project rather than recruiting the most competent staff.”
99.Mr Torka had given a different account on the employment of Mr Ngai. He stated in his supplemental witness statement that:
“Mr Ngai was employed after consultation with Mr Haden. Before employing Mr Ngai, I had asked Mr Haden to do job reference checks, and he had reported that the Mines Division would accept Mr Ngai as Blasting Engineer. I find it difficult to believe Mr Haden’s allegation now that the Mines Division ‘did not hold a favourable view’ of Mr Ngai, because had that been the case there was no reason why the Mines Division would have withheld its view. At the time, Mr Haden told me that Mr Ngai had left Orica, the Explosives Supplier, not on good terms, so we had to be careful if we went ahead with explosive supply from Orica; but I understood then that the dispute between Mr Ngai and Orica was of commercial, and not technical, nature. This did not raise concerns because we planned to employ him as Blasting Engineer in a purely technical role. Contrary to what Mr Haden now claims, he had not told me about any complaint about Mr Ngai or doubted his ability. I do not recall having been cautioned by Mr Justin Taylor or Mr John Butchart about Mr Ngai.” (at paragraph 18)
100.While she was cross-examining Mr Torka, Ms Herbert referred to a spreadsheet which contained some comments on various candidates for the post of Blasting Engineer. In relation to Mr Ngai, it was stated therein that:
“Not recommended for employment by internal Senior Leighton Manager (Justin Taylor attached to the Project) and external references inc Mines Division (cannot quote Mines however as conversation was off record)”[5]
101.There is no evidence that this spreadsheet had ever been sent to Mr Torka (unlike another spreadsheet which the claimant sent to Mr Torka on 13 October 2016 – see paragraph 35 of the claimant’s witness statement quoted above). Mr Torka stated in court that he did not recall seeing this spreadsheet before.
102.I prefer Mr Torka’s evidence over that of the claimant on this matter. It was more likely than not that Mr Torka did consult the claimant on the employment of Mr Ngai, and that the claimant did not object against the engagement of Mr Ngai at the material time. I also reject Ms Herbert’s submissions. My reasons are as follows:
(1) I do not believe (and there is no evidence) that the spreadsheet containing the comments regarding Mr Ngai had ever been sent to Mr Torka by the claimant. If the claimant had done so, there should have been an email to which the spreadsheet was attached, just like another spreadsheet which was attached to the claimant’s email dated 13 October 2016;
(2) If the Mines Division did give any adverse comment on Mr Ngai, there was no reason why such comment had to be “off record”. Put it in another way, if such a comment was something which could properly be taken into account, there was no reason why the Mines Division could not be quoted;
(3) In any event, the strong evidence which shows that the claimant should not be believed on this point is that at the end of the day, Mr Ngai’s appointment was also endorsed by the Mines Division: see the email of Civil Engineering and Development Department dated 31 October 2016 by which the nomination of Mr Ngai as Blasting Engineer was approved;
(4) Most importantly, if one reads the claimant’s witness statement carefully, it does not support Ms Herbert’s submission that “Mr Haden has always maintained that he did not agree to the hiring of Mr Ngai [TB1/72/38-39]”. Taking the claimant’s case to the highest, all he said in the witness statement was that he had been cautioned by others about the engagement of Mr Ngai. However, there was simply no evidence that he had objected to Mr Torka against Mr Ngai’s appointment.
103.Ms Herbert drew the court’s attention to the New Position Request Forms and showed that while the claimant signed off Mr Mulholland’s form[6], the claimant did not sign on the form of Mr Liao[7], and in relation to Mr. Ngai, the claimant’s name and signature were absent[8]. If it is the claimant’s argument that the claimant’s disapproval was shown by the absence of the claimant’s signature on those forms, then this argument must be rejected. This is because it is evident that the claimant did not sign on Mr Liao’s form even though it was the claimant who recommended Mr Liao’s appointment (see paragraph 37 of the claimant’s witness statement quoted above).
104.It should not be forgotten that the reason why Ms Herbert asked the court to look at the facts surrounding the employment of Mr Ngai was to demonstrate that the claimant’s function as the Blasting Team Leader had been usurped. However, before we can go that far, it should firstly be considered whether the Blasting Team Leader indeed had the sole authority to appoint Blasting Engineers.
105.On this matter, I have already quoted the claimant’s own witness statement above. It should be highlighted that at paragraph 33 thereof, he stated that
“I did not have authority to make final hiring decisions.”
106.This is consistent with what he stated in his email sent to Mr Torka on 10 October 2016:
“I don’t have authorisation to simply go ahead and hire the people I’ve proposed for blasting roles […]”
107.If the claimant did not have the authority to make such a decision (and he was well aware of it at all material times), it is a non-starter for him to allege that his function as Blasting Team Leader had been usurped.
108.To conclude, it is my finding that the claimant did not object against the appointment of Mr Ngai as Blasting Engineer at the material time. Although it was not the claimant who made the final decision to employ Mr Ngai, the making of such a decision did not amount to bypassing the claimant or usurping his function as alleged.
F2.2 Team not getting back information/not attending meetings and workshops
109.Under this head, Ms Herbert argued that:
“38. Mr. Torka was aware of members of the construction team not showing up to workshops or meetings held by Mr. Haden and said ‘I am not saying it’s a good behaviour. But Shi and Zhao and Eddy Lam did not turn up to a meeting. He [Haden] also complained about not providing him information for him to complete his submissions’ [Day 2/PM]. Mr. Torka accepted that there was an issue getting information from the construction team which Mr. Haden ‘correctly complained about’. He also mentioned again people not attending workshops and said it was probably true there was information missing [Day 3/AM].
39. Mr. Haden was also excluded from emails directly relating to his job as Blasting Team Leader. Whilst there were claims by the Respondent that others, even expatriates such as Mr. Darren Grant, did not want to work with Mr. Haden either, the fact is that Mr. Grant, whether he liked Mr. Haden or not, did work with him and did not bypass him in the same way as Mr. Ngai and other members of the surface and construction teams, who were predominately Chinese. Mr. Grant forwarded Mr. Haden emails such as [TB4/861] and [TB4/877] both of which related to Mr. Haden’s work and both of which he was originally left off of the email chain for. It is submitted that it is clear that the problem was in respect of the surface blasting and site formation teams.”
110.Again, the respondent complained that these points were not properly pleaded in the Notice of Claim.
111.Ms Herbert disagreed. She argued it was covered by paragraph 21 thereof:
“Mr Torka was aware of the atmosphere of general hostility to non-Chinese members of the blasting team. Following discussions he had with the Claimant and others involved in the Project (for example Adam Constantine, Programme Manager), Mr Torka should also have been aware of the general disengagement and lack of information sharing and communication between the CS team and the Respondent’s team resulting in, for example, CS not providing timely information when required. The Claimant was made to feel unwelcome and frozen out because he was not Chinese.”
112.I accept that the Notice of Claim did mention about the lack of information sharing and communication between the “China State team” and the “respondent’s team”. However, nothing was ever stated about the attendance of meetings and workshops. Fairness dictates that the claimant should not be allowed to slip in new issues as such by way of his witness statement. Be that as it may, adopting a similar approach as I did above, I will deal with both matters in this Judgment.
F2.2.1 Lack of information sharing
113.In paragraph 42 of the claimant’s witness statement, he stated:
“[…] This was the first time working on a joint venture project where there was a clear culture of non-engagement by employees of the other contractor towards me. There was certainly a feeling of there being separate ‘Leighton’ and ‘China State’ and I felt there was a general, underlying hostility towards non-Chinese employees.”
114.The non-engagement problem which the claimant pointed out was actually, to a certain extent, echoed by Mr Torka. However, Mr Torka explained that the problem was not about race but the fact that staff members under the Joint Venture came from two different companies. The followings were what he answered when he was questioned on the complaint of missing information and non-attendance at meetings:
“His complaint was that people did not attend meeting and he didn’t get information from construction team, what I am saying is that is probably true that information was missing, the reason may be multiple.
…
I just want to say I saw this issue but it has nothing to do with race. The issue in joint venture is that people from similar companies of bigger positions would prefer to talk to people from same companies, that’s why I am trying to build an integrated team and also I was not successful on both sides site formation team because people tend to employ people from their own companies.
…
In JV… similar problems in Germany between two largest contractors in Germany… ultimately every person has his own reasons”[9]
115.I accept Mr Torka’s evidence in this regard because even the claimant admitted that there was a feeling of there being separate “Leighton” and “China State”.
116.When complaining that he had been excluded from email communications, the claimant had referred to two emails specifically, both issued by Mr Chris Leung (Deputy Project Director of the Joint Venture). I will now consider them in turn.
117.The first one was sent by Mr Leung on 8 February 2017 at 7:31am (“Mr Leung’s 1st Email”)[10], with the title “Rock Breaking Progress and Projection”. It can be seen that there were 3 other emails preceding Mr Leung’s 1st Email and 4 persons, namely, Mr Leung, Mr Adam Considine, Mr Torka and Mr Grant, had been in discussion about the captioned topic. The email immediately preceding Mr Leung’s 1st Email was sent by Mr Torka to Mr Grant, Mr Considine and Mr Leung. In Mr Leung’s 1st Email, Mr Leung added Mr Lai, Mr Da Shi, Mr Justin Taylor, Mr Jeff Rodda and Mr Ngok Lau Yuen in the recipients’ list on top of Mr Torka, Mr Grant and Mr Considine. He did not add the claimant. The claimant was not aware of Mr Leung’s 1st Email until Mr Darren, when he replied thereto at 8:10am on the same day, added the claimant as one of the recipients.
118.From the above, it is my view that:
(1) It is unclear as to why Mr Leung did not add the claimant in his email recipients list in the first place. It may or may not be deliberate;
(2) In any event, I cannot agree that Mr Leung did not include the claimant because the latter was a non-Chinese, for the simple reason that many other non-Chinese had been included by Mr Leung as recipients of his email.
119.The second email was sent by Mr Leung on 18 February 2017 at 4:07pm (“Mr Leung’s 2nd Email”)[11]. Again, there were many recipients who had received this email, including Mr Paul Chan Kin Pong, Mr Considine, Mr Torka, Mr Grant, Mr Wong Tak On, Mr Lam Ting Kwok, Mr Justin Taylor, Mr Da Shi, Mr Jeff Rodda, Mr Lighting Chan, Mr Ngok Lau Yuen, Mr Lai, Mr Ngai, Mr Peter Ayres and Mr Salinda Palipana. And yet again, the claimant was left out.
120.The subject of Mr Leung’s 2nd Email was “RE: Progress of Temp Adit Ramp and Haul Road”. Although it appears that it was sent in reply to another email, it seems that the preceding email was not placed before the court.
121.Judging from the available materials, the views which I took in relation to Mr Leung’s 1st Email are equally applicable to Mr Leung’s 2nd Email.
122.The complaint made by the claimant that he did not get the information he needed was also supported by Mr Torka who explained the followings in his witness statement:
“The situation had become so bad that starting from late 2016, the site formation and tunnel construction teams were reluctant to deal directly with Mr Haden on work-related matters because of his temperament, and asked me and others to communicate with him […]”[12]
123.Although the claimant disagreed with this by saying that this “was not [his] experience nor is it bore out by the facts”[13], I accept Mr Torka’s evidence in this regard. This is plainly consistent with what the claimant’s case all along that he had been excluded by others, especially those coming from China State.
124.On the same basis, I accept what Mr Torka told the court during his cross-examination as follows:
“… definitely we have shortcomings from the team not providing information for other reasons than race. It was maybe shortcomings maybe lack of time, and so on but generally I felt a reluctance because I was able to get information from them and … so as a general perception from my view, it was a matter of effort made to go towards people”
125.It is therefore my finding that the claimant had indeed been excluded from certain communications. However, it is also clear that the claimant’s other colleagues, such as Mr Torka, were not so excluded.
126.I also accept that the claimant had not been able to get information he needed for discharging his duty as a Blasting Team Leader. However, it is evident that Mr Torka had been able to get the information he requested for from other staff members of the Joint Venture.
F2.2.2 Attendance at workshops and meetings
127.The claimant relied on the following evidence in this regard:
“Mr Torka was aware of the atmosphere of general hostility to non-Chinese members of the blasting team. Following discussions, he had with me and others involved in the Project. For example, Adam Considine, Programme Manager, complained to me that China State employees would not turn up to pre-arranged meetings. I recall him specifically expressing his frustration to me in his office of the lack of interest and attendance by the China State surface team at planned meetings for which their attendance was necessary. he told me that he had raised the same issues with Mr Torka. I expressed similar views about lack of co-operation to Mr Torka verbally in his office. The reason I raised these complaints with Mr Torka is that I considered him my line manager and also felt that he was empowered to do something to address the issues as Project Director.”[14]
128.Mr Lui and Ms Cheng observed that this complaint was made on the basis of hearsay evidence of Mr Considine only. I agree. There were no details on the circumstances under which the China State employees were absent from meetings. Without more, there is simply inadequate evidence to support the claimant’s allegation in this regard.
129.However, when he was cross-examined, Mr Torka accepted that the claimant did complain about members of the Construction Team having failed to attend meetings.
130.In other words, the claimant’s complaint that there were China State staff not turning up at meetings was in a way supported by Mr Torka’s evidence.
131.I therefore find as a fact that there were China State staff who did not turn up at meetings with the claimant.
F2.3 Meeting on 9 February 2017 and the subsequent (lack of) communication
132.The complaints raised by the claimant in relation to the meeting held on 9 February 2017 must be one of the most important episodes (if not the most important one) in the present case.
133.As a matter of background, the claimant had taken annual leave starting from 28 January 2017. He was supposed to return to work on 13 February 2017 (Monday).
134.On 9 February 2017 (Thursday), a meeting (“the 9 Feb meeting”) was held in the claimant’s absence, during which apparently Mr Ngai had been asked to liaise with Aurecon and to do certain work in relation to the CBARs.
135.The claimant was not happy about this because, in his view, as the Blasting Team Leader, he should have been informed about what had been discussed in the 9 Feb meeting, and Mr Ngai should not have been instructed to amend the CBARs without his knowledge.
136.There was supposed to be a meeting on 16 February 2017 for the discussion of “Flyrock Protective Measures”. However, the claimant was not invited to such a meeting.
137.As a follow-up step consequential to the 9 Feb meeting, Mr Ngai sent an email to Aurecon on 20 February 2017. However, the claimant was not included in the recipients list.
138.On the basis of the aforesaid, the claimant alleged that he had been excluded.
139.I will now discuss in details each of the aforesaid matters in turn below.
F2.3.1 The 9 Feb meeting
140.The claimant stated in his witness statement that:
“55. A meeting was scheduled on 9 February 2017 (being a Thursday) which required my active participation and for me to know what was going on in my role as Blasting Team Leader. I was due to return from leave the following Monday, being only one or two working days later. There was no reason for this meeting to have taken place during my absence, and it could have awaited my return. I believe the meeting was deliberately held knowing I could not attend in an attempt to exclude me. I was not provided with any notes or debrief of the meeting following my return to work.
56. I later discovered when Jack Muir at Aurecon called me that during the meeting on 9 February 2017 Mr Ngai was instructed to contact Aurecon for the purpose of asking for certain CBARS to be amended based on China State’s instructions. This information was never provided to me and upon receiving the call I immediately followed up with Mr Ngai.
57. I note at paragraph 23.2 of the Amended Notice of Response that the purported reason for Mr Ngai being asked to contact Aurecon was because during my absence none of my team members had access to the CBARS. It is further stated that I ‘kept the same away from my team members’ and only saved information on to my own computer. I deny both of the allegations of purported wrongdoing. I verily believe that all files relating to the blasting works were saved on Leighton’s server. Moreover, I would provide Mr Torka with regular updates by email attaching spreadsheets with up-to-date CBARS. Since the CBARs were written by Aurecon they would have been able to supply drafts if called upon to do so. This information was therefore available to the blasting team in my absence. In any event, no attempt was made to contact me during my leave to ask for this information which I would expect to have been the first step for a team member to take.
58. It is my belief that the allegations of wrongdoing made by Leighton are purely contrived and the fact is there was a concerted effect to exclude me during the time I was on leave from my leadership of the blasting team.”
141.Mr Lai had told the court why the 9 Feb meeting was held. He stated in his witness statement that:
“9. Mr Haden was the Blasting Team Leader of the blasting team in the Project. He regularly provided internal and external updates on the progress of the preparation of CBARs and BMSs. During the period of 28 January 2017 to 12 February 2017 (which I only later learned was one of his annual leave), I asked for the updates on CBARs and BMSs from other members of the blasting team to ensure preparation of blasting submissions was on schedule. I describe what happened below.
10. On 7 February 2017, at 10:35am, I emailed Mr Torka (the Project Director) and Mr Leung Kee Wo Chris (the Deputy Project Director) asking for updates on CBARs and BMSs. After this there was further exchange of emails internally within the L-CS Joint Venture, leading to an email from me on 8 February 2017 at 8:43am to various officers in the L-CS Joint Venture, including but not limited to Mr Torka, Mr Leung and Mr Haden, in which I in particular asked Mr Leung if any meeting had been arranged with Aurecon since I had to know ‘the status of CBARs’ submission’. Aurecon was an independent consultant engaged by the L-CS Joint Venture to help prepare CBARs on the strength of their relevant geotechnical expertise.
11. However, to my surprise, Mr Weyman Ngai, a Blasting Engineer of the blasting team, told me none of the blasting team members other than Mr Haden had access to information and documents relating to the blasting submissions, including draft CBARs and BMSs. I was told that Mr Haden had, contrary to the established practices of the L-CS Joint Venture, failed to save and upload those information and documents onto its internal server and only saved them on his own computer. As a result, other members of the blasting team could not update me about the blasting submissions or give me the relevant documents when Mr Haden was absent. At the time, I found it totally unacceptable for Mr Haden not to share working documents with members of the blasting team in advance, or to make arrangement such that they would have access to documents during his absence, in order to ensure timely progress of blasting submissions.
12. As the preparation of blasting submissions was time-critical, a meeting was held on 9 February 2017 among the blasting team members (other than Mr Haden who was then in annual leave), officers of Aurecon and myself. From my recollection and the relevant meeting invite, officers of Aurecon attending the Feb 9 Meeting were Mr Daniel Leung, Mr Derek Cheung and Mr Jack Muir. At that meeting, I urged all parties to expedite preparation of CBARs for surface blasting, and rationalise the construction sequence in order to give the L-CS Joint Venture some additional float in the programme of the Project. At 8:54pm on the same day, I circulated an email to my colleagues in the L-CS Joint Venture, including Mr Haden, stressing that we had to ‘work hard on the mechanical breaking’ since the ‘earliest blasting permit available may be late April [2017]’. There was all along a very tight timeframe for the blasting submissions.
13. As discussed and agreed at the Feb 9 Meeting, Mr Ngai was tasked to follow up and further liaise with Aurecon on the revisions to be made to draft CBARs for surface blasting. He had duly done so, as shown by his follow up email exchanges with Mr Daniel Leung of Aurecon on 9 February 2017 (6:38pm) and 20 February 2017 (10:41am).
14. For BMSs, I also understood from Mr Ngai that Mr Haden had not shared the relevant drafts with anyone. To avoid delay in their preparation, I verbally asked Mr Nagi to prepare BMSs relating to surface blasting in early February 2017, during the period of Mr Haden’s absence.
15. The steps taken as described above in Mr Haden’s absence were in no way intended to exclude, bypass or prevent him from performing his duties. On the contrary, it was only due to his failure to properly delegate job duties about the blasting submissions, to share information with his blasting team members and to make proper arrangement for information and document retrieval during his period of annual leave that I, Mr Torka, other members of the blasting team faced great difficulties in following up on blasting submissions. It was only out of necessity to ensure timely preparation of blasting submissions that we had to and did take those correct actions.”
142.Mr Torka also explained in his witness statement that:
28. […] During this period [Mr Haden’s annual leave from 28 January 2017 to 12 February 2017], Mr Lai asked for information and documents relating to surface blasting submissions, basically CBARs and BMSs. With his extensive experience in site formation and surface blasting operations, Mr Lai was tasked by L-CS Joint Venture board to assist on relevant matters on blasting submissions, because it was critical that planning and design of blasting works could meet requirements and programme of the Project and that the blasting submissions could be approved in good time such that blasting operation could commence on schedule. There could be no objection to Mr Lai’s involvement.
29. Mr Lai came to my office after learning from Mr Ngai that he did not have access to CBARs. I then checked Mr Mulholland, who confirmed that he also had no access, and upon further enquiry, it was found out that in fact, none of Mr Haden’s team members (including Mr Ngai, Mr Liao and Mr Mulholland) had access to the information and documents relating to the blasting submissions. Apparently, Mr Haden kept such information and documents away from his team members, even whilst he was on leave. In fact, contrary to the established practice within the L-CS Joint Venture, he had not used the common server for submission of project documents but retained the working project documents on his own computer only. While I could find some CBARs attached to emails sent to me earlier as copied-to recipient, it was important to make sure that the latest version of CBARs could be retrieved and reviewed as and when needed. Facing such problems, I instructed Mr Ngai to contact Aurecon to try to obtain the information and documents requested by Mr Lai.
30. On 9 February 2017, a meeting amongst the blasting team, Mr Lai and Aurecon was held. At that meeting, Mr Lai reviewed CBARs, identified some problems and suggested improvements to the surface CBARs, which involved rationalising the construction sequence so as to give the L-CS Joint Venture increased productivity and additional float in the programme. I instructed Mr Ngai to collate and provide the outstanding information required by Aurecon in order to revise CBARs in a timely manner. Mr Ngai then worked with Aurecon, and revisions were made to CBARs. But for Mr Haden’s failure to put in place proper arrangements, it would not have been necessary for Mr Ngai to contact Aurecon to obtain documents which were supposed to be shared among and thus readily accessible by the entire blasting team. Those changes made to CBARs could be reviewed and confirmed by Mr Haden upon his return; in fact, it was all along intended that he would do so.
31. The above discussions and work done during Mr Haden’s absence were necessary, because the blasting operations were time critical. Generally, it takes 6 to 9 months to obtain blasting permits, after which there are about 2 years to complete blasting activities so that subsequent construction activities could commence in good time and be completed within the remaining contract duration. Any delay in blasting operations would have a direct knock-on effect on the subsequent activities, thereby delaying overall project completion which could have significant adverse consequences under the Contract since the L-CS Joint Venture would be liable to pay damages. There should be no suspension of work simply due to the absence of certain personnel working in the Project.
32. […] It is unreasonable and unfair for Mr Haden to claim in the NOC that there had been an attempt to exclude or bypass him at work. After all, being his superiors, Mr Lai and I had the authority to manage the Project.”
143.The following factual issues arose out of the evidence of the respective witnesses:
(1) Did the claimant save the relevant documents (including the latest versions of CBARs and BMSs) in the respondent’s server?
(2) Should the 9 Feb meeting have been held before the claimant returned to work after his annual leave?
(3) By virtue of the holding of the meeting and the instructions given to Mr Ngai, was the claimant intentionally excluded and bypassed?
F2.3.1.1 Saving of documents on server
144.There is a direct conflict in the evidence from both sides on this question. While the claimant stated that he had saved all the relevant documents relating to the blasting works in the respondent’s server, Mr Torka and Mr Lai said this was not the case.
145.Ms Herbert has reminded this court the confirmation from both Mr Torka and Mr Lai that they had not checked the server personally. This is indeed an important matter that I should bear in mind.
146.Be that as it may, I still consider that it was more likely than not that the claimant did not save the relevant blasting documents (including the latest versions of CBARs and BMSs) in the respondent’s server, because it is evident that the claimant did not share information with his own Blasting Team members.
147.Furthermore, according to Mr Torka, upon Mr Lai’s discovery that Mr Ngai did not have access to CBARs, Mr Lai did go to Mr Torka’s office and inform Mr Torka about it. In my view, in effect Mr Lai was making a complaint. Facing such a complaint, even though Mr Torka said time and again that he would like to set up an integrated team and did not want to distinguish the respondent’s staff from the China State staff, I do believe that, as a matter of company ego, and given the claimant was an employee of the respondent, Mr Torka would not accept the truth of such a complaint lightly. If the facts allowed, I am sure Mr Torka would try to explain to Mr Lai that there might be misunderstanding in the matter. It was probably because of this that Mr Torka had then checked with Mr Mulholland about Mr Lai’s allegation, and as Mr Torka told us, Mr Mulholland did confirm that he also had no access to the documents relating to the blasting submissions.
148.On the basis of what I said above, I think due weight must be given to Mr Torka’s acceptance of Mr Lai’s aforementioned complaint.
149.Moreover, it is evident that the claimant did not disagree with Mr Torka when Mr Torka mentioned about this in their meeting on 27 February 2017. According to the transcripts of the meeting, Mr Torka and the claimant had the following dialogue:
Torka: It, it is your job, the thing is your team, whilst you’re on leave, your team should have access to it and that’s what I was telling you before, you need to involve them, you need to involve them, let them deal with it, not just, oh, over to you, I’m no longer responsible. It’s you deal with it, if you have an issue you come back with me, this is what I’ve already done, so this is the kind of relationship that’s required...”
[…]
Claimant: […] I already had a Method Statement for Tseung Kwan O and CBAR 5 as of last year, in draft format
Torka: Yes, but if, so see you had it and you... but you not... you have not given or shown it to anyone…
Claimant: Ok fine, alright fine, if that’s what China State want, which they’ve made it very clear, I don’t have an objection with that.
F2.3.1.2 Necessity of the 9 Feb meeting
150.Despite what the claimant stated in his witness statement, he had admitted during cross-examination that he did not object to the holding of the 9 Feb meeting. This was what the respondent’s counsel recorded as the claimant’s answer when he was asked in court to confirm whether he “still did not and do not object that meeting was held in [his] absence”:
“I don’t object the fact that the meeting was held because that was necessary but I object to the fact that I was not made aware of the content.”
151.In fact, the claimant had also indicated that he did not have any issue with the meeting being held when he met Mr Torka on 27 February 2017, when he said:
“Ok and that’s fine, I’m not 4, I don’t have an issue with those meetings happening, they have to happen.”
152.The claimant’s counsel had also had a change of position as a result. She submitted that:
“[…] whilst Mr. Haden doubted whether the meeting was necessary; the true objection has always been that he was not informed of the outcome and left off the subsequent email chain […]” (paragraph 9 of the claimant’s reply submissions)
153.It is evident that Mr Lai had been posted by China State to join the Joint Venture so as to assist in the preparation of the blasting submissions. He had only joined in mid-January 2017. In my view, it is understandable that he would like to have a better idea of the progress of the preparation of the relevant documents as soon as possible, so that he could make his contribution to the Project sooner rather than later. In these circumstances, I do not think Mr Lai can be queried as to why he did not wait until the return of the claimant. After all, the blasting documents had not been finalised yet, and it was always up to the claimant to give his further view upon his return.
154.I therefore find that it was necessary to hold the 9 Feb meeting before the return of the claimant from his annual leave.
F2.3.1.3 Intended exclusion of the claimant
155.I now come to the question of whether, by virtue of the holding of the 9 Feb meeting and the instructions given to Mr Ngai to amend the CBARs, the claimant was intentionally excluded and bypassed.
156.At this point, I should refer to paragraph 55 of the claimant’s witness statement which I have quoted above as well as what Ms Herbert submitted in paragraph 41 of her written closing submissions which reads:
“Mr. Haden has explained that he had a belief that the meeting was held knowing he could not attend in an attempt to exclude him [TB1/76/55]. Mr. Haden also explained the crux of his complaint in cross-examination [Day 1/AM] was of being bypassed in communication and that the substantial content of meeting was not communicated to him.”
157.It can be seen that both the claimant and his counsel had been quite vague as to who they were alleging that had excluded him from attending the 9 Feb meeting and who they said had bypassed the claimant in communication connecting with the 9 Feb 2017.
158.In this part of the Judgment, I will firstly focus on all parties except Mr Ngai.
159.Given the claimant’s concession that the 9 Feb meeting was necessary, I think it is clear that the staff of the Joint Venture other than Mr Ngai were not trying to exclude the claimant when they held that meeting.
160.Such a conclusion is further supported by the following emails:
(1) when Mr Lai sent an email on 8 February 2017 at 8:43am and enquired whether any meeting had been lined up with Aurecon[15], the claimant was also included as one of the recipients. If the meeting was intended to be organised behind the claimant’s back, it is common sense that the claimant would not have been alerted about it;
(2) After the 9 Feb meeting, Mr Daniel Leung of Aurecon sent an email at 6:38pm on the same day to the claimant and others (including Mr Mulholland, Mr Lai, Mr Ngai, etc.) and asked for confirmation of certain matters and further information for the preparation of CBARs. If there was any instruction given by the Joint Venture to Aurecon that the claimant should be excluded and not be further involved in the preparation of the CBARs, Mr Daniel Leung would not have sent such an email to the claimant;
(3) It should be specifically noted that in the said email by Mr Daniel Leung, it was started with the words “Further to the meeting today with LCSJV”. Similar wordings had also been used by Mr Daniel Leung in another email sent at 7:20pm on the same day (of which the claimant was also a recipient). It is therefore clear that there was no secret that a meeting had been held on that day;
(4) Mr Lai had also sent an email to Mr Grant on 9 February 2017 at 8:54pm and he had sent a copy thereof to the claimant and some other Joint Venture personnel. Mr Lai also referred to the meeting that afternoon (“as discussed this afternoon”[16]). Again, he would not have done so if he did not want the claimant to know that such a meeting had been held.
161.Ms Herbert complained that “substantial content of meeting was not communicated to [the claimant]”. From the documentary evidence disclosed, it seems really the case that no one had taken the initiative to report to the claimant as to what had happened, not even his Blasting Team members.
162.However, does that amount to exclusion?
163.I have referred to various emails which were sent after the 9 Feb meeting. Take Mr Daniel Leung’s email which was sent at 7:20pm as an example. It related, among other things, to CBAR 2. The claimant was one of the recipients, together with some other people from the Joint Venture. Mr Grant then replied to the said email at 7:41pm and 8:35pm respectively. Mr Lai then commented on Mr Grant’s email at 8:54pm, and the claimant was also one of the recipients of this email. A question immediately comes up to one’s mind: If the claimant was so interested to know the progress made in the 9 Feb meeting (he must be aware of such a meeting having been held upon his return from his annual leave on 13 February 2017), why didn’t he take the initiative to ask those other people who had attended the meeting by “replying all” the emails which I have referred to above as to what had been discussed in the 9 Feb meeting? If the claimant had asked but no one replied to him, then he might have a better case for saying that others in the Joint Venture had deliberately held discussions to his exclusion. But the fact is that he did not ask such a question.
164.But perhaps the most obvious point which might be used to prove against any allegation of exclusion is the undeniable fact that the claimant, being the Blasting Team Leader, was given the sole authority by virtue of the Contract to sign off the CBARs and the BMSs. In other words, these documents could not be submitted without the claimant’s approval. One should therefore ask: would there be any realistic chance to exclude the claimant in the preparation of the blasting documents at all if at the end of the day the claimant was the very person who would have to approve and sign such documents? The answer is obvious. It must be “No”.
F2.3.2 Mr Ngai’s email dated 20 February 2017
165.As an follow-up action, Mr Ngai contacted Aurecon on 20 February 2017 by email and it is the claimant’s argument that Mr Ngai had deliberately left him out from the list of recipients of the email.
166.On this matter, the respondent submitted that it had not been properly pleaded in the Notice of Claim.
167.The only part in the Notice of Claim which touched on this matter was in paragraph 22b which provided that:
“The Claimant subsequently discovered that the meeting did not address anything that had not been already dealt with and resolved. The Claimant also discovered that in his absence Mr Ngai had contacted Aurecon, without informing the Claimant, and asked for certain CBARs to be amended based on CS instructions.” (emphasis added)
168.I must say that the plea of “without informing the claimant” was not the clearest way in alleging that the claimant had been deliberately excluded from the list of recipients. Having said that, I am satisfied that the crux of the matter is that the claimant did not receive the email sent by Mr Ngai to Aurecon. Looking at the matter in this way, I would allow the claimant to rely on this allegation at the trial.
169.As aforesaid, on 9 February 2017 at 6:38pm, Mr Daniel Leung of Aurecon sent an email to the claimant and Mr Mulholland (copied the same to Mr Lai, Mr Justin Taylor, Mr Ngai, Mr Jack Muir, Mr Joshua Barry and Mr Derek Cheung) and asked for information for the preparation of the CBARs.
170.On 20 February 2017 at 10:41am, Mr Ngai had, by using the email thread created by Mr Daniel Leung, sent a “reply” to Mr Leung (“Ngai’s 20 Feb Email”). This was not really a reply as such, because Mr Ngai did not provide the information requested for by Mr Leung on 9 February 2017. Rather, by Ngai’s 20 Feb Email, Mr Ngai requested for information from Mr Leung. Apart from Mr Leung, this email also named Mr Derek Cheung and Mr Jack Muir as recipients. Mr Chris Leung, Mr Wong Tak On, Mr Eddie Lam, Mr CN Lai and Mr Da Shi were copied. However, the claimant was not included in the list of recipients at all despite the fact that he was included initially in Mr Daniel Leung’s email.
171.As Ngai’s 20 Feb Email was obviously using the same email thread which was previously used by Mr Daniel Leung, I find that it was a deliberate decision on the part of Mr Ngai to omit the claimant from the recipients list. As Ngai’s 20 Feb Email was apparently related to the preparation of CBARs, in my view, there is no valid reason why Mr Ngai should omit the claimant at all in the way he did.
172.Hence, it is my conclusion that Mr Ngai (who was the claimant’s subordinate) had deliberately not involved the claimant in the matter, which in my view should not have been done. Indeed, Mr Lai also accepted fairly in court that Mr Ngai should have included the claimant in his email.
F2.3.3 The claimant’s email sent on 13 February 2017
173.Before I leave the topic on communication subsequent to the 9 Feb meeting, I would like to mention one more matter, which is also related to “omission of recipients” in emails.
174.As aforesaid, after the 9 Feb meeting, Mr Daniel Leung of Aurecon did ask for further confirmation/information from the Joint Venture. An email was sent for this purpose. However, as can be seen from the Ngai’s 20 Feb Email, Mr Ngai himself (who was a recipient of Mr Daniel Leung’s email) did not know whether anyone had replied to Mr Leung, because he asked Mr Leung for an update as to what had been provided to him since the 9 Feb meeting and whether any information requested was still outstanding.
175.Why was that so?
176.It is evident that, as a matter of fact, the claimant did reply to Mr Daniel Leung. He did it by email on 13 February 2017 at 3:38pm (“the claimant’s 13 Feb Email”)[17]. It is also undeniable that the claimant had used the email thread used by Mr Daniel Leung on 9 February 2017. However, a comparison of the lists of recipients of the two emails would show that Mr Ngai and Mr Mulholland were omitted from the claimant’s 13 Feb Email.
177.The claimant explained in court that at the material time he had pressed the “reply all” button. I reject this evidence without hesitation. In my view, it was obviously not the case. It was a deliberate action on the part of the claimant to omit Mr Ngai and Mr Mulholland from the recipients list.
178.When the claimant was cross-examined, he also stated that while he accepted that Mr Ngai and Mr Mulholland should be kept in the loop, he was expected to cascade the information. Again, I reject such evidence. As I pointed out above, under the Contract, the Blasting Team Leader was supposed to prepare the blasting documents with the assistance of his team. There was no reason why he should stop his team members from getting information about the progress of the preparation of the blasting document.
179.Taking into account the evidence of Mr Torka, Mr Lai and Mr Grant (which I accept), I am of the view that the relationship between Mr Ngai and the claimant must have been very tense, and as a result of which they did not communicate with each other. Indeed, it is not surprising that they had such a tense relationship, given the claimant had even decided to have Mr Ngai seated in a particular position in the office such that he could observe Mr Ngai’s computer screen to check if Mr Ngai did things secretly for China State. It should be borne in mind that Mr Ngai had worked in the explosives and blasting field for 30 years[18] and was, as aforesaid, someone recognised by the Civil Engineering and Development Department of the HKSAR Government to be a suitable person to take up the post of Blasting Engineer. What the claimant did to Mr Ngai must be insulting to say the least.
F2.3.4 The proposed meeting on 16 February 2017 (“the Proposed Meeting”)
180.The claimant alleged that he had been excluded yet again from attending a meeting involving AECOM concerning “Flyrock Protective Measures for Surface Blast”. He stated that the fact that he was not involved to attend this critical meeting caused Mr Stephen Tam, Senior Resident Engineer AECOM to write an email to the Construction Manager, Mr Wong Tak On, to state his disbelief.
181.Mr Stephen Tam had been called by the respondent to give evidence at the trial. In his witness statement, he explained what actually happened as follows:
“9. Shortly after Mr Haden’s return from annual leave, AECOM had another regular meeting with him on 15 February 2017. At the meeting, I checked with him on the status of the blasting submissions, but he was not able to give me any useful information. Instead, he told my colleagues (Mr Billy Siu, Mr Denver Wu and Mr Tommy Wan) and myself that he could not follow up on the status of the blasting submissions and complained that he had been excluded from internal meetings of the L-CS Joint Venture. In particular, he told us that there would be a meeting among the members of the site formation team the next day on 16 February 2017, but he had not been invited to attend the meeting. This is the ‘Proposed Meeting’ referred to in the NOR paragraph 24.5. At the time, I understood that a meeting like the Proposed Meeting was an operational meeting among teams in the L-CS Joint Venture to discuss practical matters such as the planning and operation of blasting cages. Officers of AECOM including myself were not supposed to know about or attend any such meeting, so I did not know whether it was necessary for him to attend the Proposed Meeting at all, but I did find it very strange that he complained to people outside the L-CS Joint Venture.
10 – 11. […]
12. Be that as it may, wishing to ensure timely regular blasting submissions to the CoM and given that Mr Haden had been unhelpful in not being able to report on the status of the blasting submissions at our meeting on 15 February 2017, I decided to follow up on the matter with the leader of the site formation team of the L-CS Joint Venture, Mr Wong Tak On, who I understood held the title of Construction Manager (Site Formation). I sent an email to Mr Wong at 6:23pm on 15 February 2017, copying it to Mr Haden, Mr Jan Torka and others, setting out my concerns about the possible delay of the blasting submissions.
13. As an outsider to the L-CS Joint Venture, I was not supposed to participate in those site formation team meetings, I was unsure whether there had indeed been the Proposed Meeting, whether Mr Haden was supposed to attend it and if he in fact had not been asked to do so, why not. I did not want to interfere with the internal affairs of the L-CS Joint Venture and was conscious of not being seen to have such intention, so I never insisted in the email that Mr Haden should attend the Proposed Meeting and, in fact, I asked Mr Wong to ignore my email if he already was ‘on top of this issue or if I have got it wrong’ and stressed that I did ‘not intend to get involve in your internal matters’.”
182.This matter can be dealt with very briefly. For this purpose, I need to quote the only paragraph in the claimant’s witness statement which touched upon this issue. In paragraph 59 thereof, the claimant stated that:
“Further evidence of exclusion comes from the attempt to exclude me from a meeting during February 2017 involving AECOM concerning ‘Flyrock Protective Measures for Surface Blast’. The fact that I was not involved to attend this critical meeting caused Mr Stephen L. C. Tam, Senior Resident Engineer AECOM to write to the Construction Manager, Mr Wong by email dated 15 February 2017 expressing his disbelief that I was not invited to attend the meeting.”
183.If the claimant was not invited to attend the Proposed Meeting, then he must have heard about this meeting from somebody else. However, he did not say from whom he had heard about it. While he had described this meeting as “critical”, he did not explain further why he said so. Neither did he state in his witness statement who were supposed to attend this meeting if he was not invited. Most important of all, as pointed out by the respondent’s counsel, there is no evidence as to whether the Proposed Meeting had indeed been held at all.
184.The claimant has plainly failed to prove that he had been excluded from any meeting on 16 February 2017 as alleged.
F2.4 Mr Torka’s Actions
185.Ms Herbert submitted that Mr Torka had allowed the Blasting Team members to bypass the claimant. In her own words:
“Mr. Torka was aware of the communication problem within the team(s). He agreed that rather than stepping in he should have told them Mr. Haden is in charge of the blasting team, and you should speak to him [Day 2/PM]. However, it is submitted that nevertheless he allowed the team(s) to speak to him directly, thereby bypassing Mr. Haden.” (paragraph 47 of the claimant’s written closing submissions)
186.Mr Lui and Ms Cheng submitted that this criticism had never been mentioned in the Notice of Claim. In reply, Ms Herbert referred this court to paragraphs 27 to 32 of the Notice of Claim. In my view those paragraphs cannot assist Ms Herbert here because they were concerned about what happened on 27 and 28 February 2017 only. Hence, in principle, the claimant should not be allowed to run this point.
187.For reasons I have explained before, I would nonetheless consider the claimant’s argument, which, in my view, is totally misconceived, because when Mr Torka mentioned in court about talking to the Blasting Team members directly, he was replying to a line of cross-examination which was based on the following part of paragraph 24 of his witness statement which Ms Herbert quoted in court:
“The situation had become so bad that starting from late 2016, the site formation and tunnel construction teams were reluctant to deal directly with Mr Haden on work-related matters because of his temperament, and asked me and others to communicate with him […]” (emphasis was mine)
188.What Mr Torka said as quoted above is also supported by what he said in the meeting he had with the claimant on 27 February 2017:
“The issue I have is, and that’s not just on the China State side, is that, look, I think we have a relationship, I can talk to you, you can talk to me, but there’s a lot of people that are afraid to go to you and they would rather come to me to tell me to talk to you…”
189.This certainly cannot be served as evidence for “bypassing”. Mr Torka was only acting as a bridge of communication between on one hand the site formation and tunnel construction teams and on the other hand the claimant.
190.If anything, this only shows that those team members would rather talk to another expatriate than to the claimant.
191.The next points which Ms Herbert took were as follows:
“48. Mr. Torka also said that Mr. Ngai was in Mr. Haden’s team under his direct control and he expected as team leader for him to find a way to get information. At the same time, he said it was a ‘two-way street’ but he agreed that only Mr. Haden lost his job [Day 3/AM]. It is submitted that despite communication being a two-way street clearly Mr. Haden took the full brunt of the blame.
49. In relation to the meeting held during Mr. Haden’s annual leave Mr. Torka claimed not to know that Mr. Haden did not get information from his team until a week later but then subsequently admitted that he never chastised Mr. Ngai for leaving Mr. Haden out, he said ‘I didn’t talk to him about him, no’ [Day 3/PM].
50. It is submitted that Mr. Haden was singled out, bypassed and usurped from being able to perform his role. This all happened against a background of hostility and divisiveness towards race. The situation was that members of the site formation team and the surface blasting team, predominantly local Chinese, did not want to deal with Mr. Haden a ‘gweilo’ and the management, particularly Mr. Torka, did nothing to protect him. Everything that was done, focused the blame of this issue of ‘two way’ communication on Mr. Haden with no blame or accountability on the team(s) who were discriminating against him.”
192.As I see it, the main point which Ms Herbert has taken here is that while the want of communication is a mutual problem, it was the claimant who had taken all the blame, but “members of the site formation team and the surface blasting team, predominantly local Chinese” (see paragraph 50 of the claimant’s submissions quoted above), were not blamed.
193.Again, the respondent has taken a “pleading point” here.
194.Ms Herbert maintained that this complaint was covered by paragraphs 27 to 32 of the Notice of Claim. I do not accept this argument, as they clearly did not.
195.Be that as it may, for the aforementioned reason, I would proceed to consider this argument.
196.Since Mr Torka accepted in court that he indeed did not chastise Mr Ngai for excluding the claimant from Ngai’s 20 Feb Email, I find as a fact that no disciplinary action or otherwise had been taken against the site formation team and the surface blasting team members for not communicating with the claimant.
F3. The Meeting on 27 February 2017
F3.1 The decision to terminate the claimant’s employment
197.It is evident that the respondent’s management decided on 21 February 2017 to terminate the claimant’s employment. By virtue of Mr Freeman’s email sent at 5:39pm on that day, Ms Jessica Poon (the respondent’s Reward Manager) was instructed to prepare the paperwork accordingly. Mr Freeman was a member of the executive board of the Joint Venture. The claimant’s termination was stated by Mr Freeman in the said email to be “due to his inability to work in a Team and also the Clients Representatives”.
198.According to Mr Torka’s witness statement, such a decision was made in the following circumstances:
“34. On 21 February 2017, Mr Haden sent a series of emails confronting Mr Lai for what had occurred during the period of his leave. Mr Lai copied those emails to colleagues involved in the matter complained of, including myself. Mr Haden made a number of false and unfair accusations against Mr Lai, which was indeed unreasonable when it was not only Mr Lai alone who had taken steps at work to progress the draft blasting submissions, and it had been a collective decision of the management and the blasting team members of the L-CS Joint Venture that work should continue. […]
35. After seeing the emails between Mr Haden and Mr Lai, I called Mr Paul Freeman, another member of the executive board of the L-CS Joint Venture, to discuss the matter. As said above, since around January 2017 I had been keeping Mr Haden’s performance under review and evaluating the possibility of terminating him early, and had discussed these with Mr Freeman in our informal discussions. I had from time to time called Mr Freeman to discuss matters about the Project as he was very open to discussion and often gave me useful feedbacks. My original plan was to release Mr Haden from the Project as soon as MTRC approved all blasting works that had to be undertaken in the vicinity of the MTRC area such that blasting operations could commence. I had also in mind that Mr Mulholland or Mr Ngai would be suitable to replace Mr Haden – this was why, as described below, on 27 February 2017, when Mr Haden’s employment was supposedly to be terminated. I already consulted with AECOM on their suitability as replacement.
36. It was during my discussion with Mr Freeman over our telephone call after reading those offensive emails from Mr Haden to Mr Lai that I decided that Mr Haden’s employment should be terminated. I described to Mr Freeman my frustration that my efforts to persuade Mr Haden to work well with others had been in vain, and my feeling that his poor attitude towards others were torpedoing my efforts to build the L-CS Joint Venture team as a cohesive unit. Mr Freeman asked if the Project could proceed without Mr Haden, to which I answered in the affirmative because I had the backup plan of replacing him with Mr Ngai or Mr Mulholland. At that time, there were few blasting works in Hong Kong and very limited roles for a technician of Mr Haden’s experience. In general, when construction companies have no role in active projects for its employees, they would be dismissed or terminated. Therefore, I understood my decision to release him from the Project would likely lead to the termination of his employment. Towards the end of our discussion, Mr Freeman told me he would further speak to the human resources department in order to confirm my understanding that Mr Haden’s employment would be terminated. Clearly, the decision to terminate his employment was solely based on his poor performance at work and unacceptable attitude towards fellow staff.
37. The decision to terminate Mr Haden’s employment was initiated by me, processed and discussed internally by Leighton’s management, without any involvement of CS or Mr Lai. Mr Haden’s claim in the late (sic) sentence of paragraph 25 of the NOC is incorrect. There was never a board meeting of the L-CS Joint Venture, consisting personnel from Leighton and CS, held to discuss or agree on Mr Haden’s employment. Neither the L-CS Joint Venture nor CS was in a position to interfere with the staff management of Leighton including the dismissal of Mr Haden. In fact, Mr Lai did not have the authority to ‘instruct’ Mr Freeman to terminate Mr Haden’s employment, as now alleged.”
199.Ms Herbert described it as “odd” that those emails which the claimant and Mr Lai exchanged on 21 February 2017 would have led to the claimant’s termination in the light of the evidence from Mr Lai stating that he was not bothered by those emails, and given the respondent’s stance that there was no communication between Mr Torka and Mr Lai before the termination at all.
200.Pausing here, I should note that while Mr Lai did describe the claimant’s emails which were sent to him on 21 February 2017 as “extremely rude”, “abrasive” and “ridiculous” in his witness statement, he had toned down a lot when he was cross-examined in court, as he told the court that he did not find those emails rude and that he was not bothered by them. He also said there was nothing special with those emails.
201.I do not think such a change in Mr Lai’s attitude would have any impact in the present case, because I agree with the respondent’s counsel that whether Mr Lai considered those emails from the claimant rude is neither here nor there. I accept Mr Torka’s evidence that the decision to terminate the claimant’s employment was purely an internal matter of the respondent and Mr Lai was not involved at all. This was what he explained in court:
“No, I didn’t [feel it necessary to talk to Mr Lai about the emails on 21.2.2017], and I don’t know where he was at that point in time. For me, it was about my feelings, and about how I felt in managing the conduct more than how CN Lai felt
…
I don’t see these emails in isolation I see them in the context, of what had happened before. This project is a joint venture project which in my experience are always more difficult than single company projects, and then it became more difficult when bigger more equal companies together, when equal size bigger companies coming together, every company has own procedures routes proceedings that need to be followed. So for me, it was most important to build a successful team that focuses on work going forward and not who’s doing what and egos between the companies. I’m trying to build an integrated team that was not focusing on organisation itself but on the work to be done. In my experience, that’s the key to have a successful project and we were having our difficulties in this, but I felt started at least in early January, Haden his conduct taking towards other staff, was damaging my effort and I asked him to refrain, what I saw here was it started again.”[19]
202.The assertion that Mr Lai was not involved in the decision to terminate is supported objectively by the followings:
(1) There was no evidence that Mr Lai had sent any email to Mr Torka or anyone else to demand termination of the claimant’s employment;
(2) It is noted that the last email exchanged between the claimant and Mr Lai was sent by the claimant at 1:53pm[20]. On the other hand, Mr Freeman’s email mentioned above was sent less than 4 hours later at 5:39pm. There is no evidence that any meeting had been held by the Joint Venture in relation to the claimant’s employment within such a short time.
203.I should also mention that Mr Torka had been specifically cross-examined on Mr Lai’s involvement in the respondent’s decision to terminate the claimant’s employment. Mr Torka was unshaken all along, and he maintained that it was primarily his decision to release the claimant from the Project, which had nothing to do with Mr Lai. His oral evidence on this must be given due weight because, as requested by Ms Herbert before the opening of the respondent’s case, Mr Torka did not stay in court while Mr Lai was giving his evidence. Hence, Mr Torka did not know what evidence Mr Lai had given.
F3.2 The meeting
204.It is undisputed that Mr Torka and the claimant had had a meeting on 27 February 2017. Mr Torka’s initial plan was to inform the claimant at the meeting that his employment with the respondent would be terminated and serve him with the termination letter. However, the claimant did not know about that beforehand. He thought it was just a performance development review meeting as this was so marked in the message by which he was invited to attend this meeting.
205.While the claimant had sought Mr Torka’s permission to audio-record this meeting, at the end of the day, only part of the meeting was so recorded.
206.The transcripts of the meeting show that during the meeting, the claimant had raised the issue of racism. The followings were what was said:
FH: Ok fine, but you know, eh…the Chinese have never been coming through with information to me.
JT: Yes, I, I accept that. And that’s part of…
FH: And that’s not my fault, because you know, there’s been enough calls of racism on this project enough as it is. Chris Leung, well you telling me yourself that Chris Leung came and said I don’t want non-Chinese Blasting Engineers. I didn’t even get a chance to choose the people I want in that department.
JT: Yes, I look…look…I tried to manage it.
207.Ms Herbert submitted that the fact that the claimant mentioned about “racism” in this meeting shows that he did not make it up and there was indeed a background of racism in the Project.
208.I agree that the fact that the claimant had raised about “racism” in this meeting shows that it was not an after-thought that he considered there was racism in the Project. But of course, whether there was indeed racism is another matter.
209.Ms Herbert then submitted that it was because of the claimant’s raising of this “racism grievance” that Mr Torka had changed his mind and decided not to terminate the claimant’s employment there and then.
210.It is important to note what the claimant stated in his witness statement in this regard:
“70. The meeting initially concluded with Mr Torka telling me that my employment would be terminated […] Mr Torka showed me a letter dated 27 February 2018 (sic) confirming the termination of my employment. Mr Torka then changed his mind and said that I would instead be subject to a performance review process and that he would ask Mr Freeman if the surface blasting works could be moved to China State’s responsibility.
71. Mr Torka confirmed the conclusion of the meeting in an email instruction to Ms Poon in Human Resources at 9:09pm on 27 February 2017.”
211.The email which Mr Torka sent to the Ms Poon on 27 February 2017 at 9:09pm reads:
“Dear Jessica,
I conducted a meeting with Francis to explain the content of the letter and the reasons this evening. He was surprised that he hadn’t received a written warning prior to dismissal. I referred to our earlier discussions and while he acknowledged the content of the discussions, but he said he had not expected to be dismissed on that basis.
Hence, I went through the experienced problems and my expectations with him again in detail and asked him whether he understood and would be able and willing to improve which he confirmed. On this basis [I] decided to give him final warning instead of immediate dismissal with the following improvement actions for him to implement:
- handover responsibilities of Site Formation works to Weyman Ngai, but render full support to and share all necessary information with the Site Formation Team
- enhance the communication and improve the relationship within the Blasting Team, particularly, with the JV partner staff
- refrain from expressing internal disagreement/disputes, or discrediting members of the team in front of external persons including the Engineer, client, authorities, consultants or suppliers
- apply service attitude/be supportive to all members of the construction team that require input from the blasting team
- comply with site working hours (starting at 08:00)
I will review improvements together with him within a month i.e. 27 March 2017. I have asked him whether he understood the seriousness and that this was my last and final warning. He confirmed.
Do we need to put this into a formal improvement plan to have a solid position if it does not work out?
Regards,
Jan Torka”
212.It can be seen from the above that the claimant has referred to Mr Torka’s email in his witness statement without commenting on its contents. I therefore accept without hesitation that such contents represent what actually happened by the end of the meeting on 27 February 2017 between the claimant and Mr Torka.
213.It can also be seen that Mr Torka did not mention a single word about “racism” in his email to Ms Poon. In my view, if the reason for his change of mind was really the claimant’s mentioning of the issue of “racism” as alleged, Mr Torka would not have omitted it.
214.I therefore reject Ms Herbert’s submissions. I accept Mr Torka’s evidence that he had had a change of mind only because of his intention to give the claimant a final chance, since the claimant had agreed to make improvements on the problematic areas identified and it seemed to Mr Torka that the claimant did not comprehend the warnings and reminders previously given. I am not surprised that Mr Torka had made this decision, after all, he had all along viewed the claimant as a very capable and competent professional in the blasting field. He even described the claimant as “the most competent blasting person in Leighton after Mr Magub’s retirement”[21].
F4. “Gweilo”
215.It is undisputed that the term “gweilo” (鬼佬) has been widely used in Hong Kong. In the present case, the claimant alleged that the use of this term in the Project shows that there had been racial hostility in the work context.
216.In the claimant’s witness statement, he stated that:
“43. The word ‘gweilo’ was said frequently during discussions between Chinese employees. While I don’t speak Chinese with any proficiency, I would often overhear conversations where the word gweilo was used and, being one of the words I knew it would stand out to me. I understand the word ‘gweilo’ to mean ‘white devil’ or ‘white ghost’. It was said frequently and often. For the most part I felt that it was being used in a hostile way. Since I was one of the few non-Chinese present on the Project, it very often felt that I was the subject matter of the conversation and the person being referred to as a ‘gweilo’. The word used in the manner it was made me feel like an outsider who was not welcome – a culture of not really wanting any foreigners around.
44. I heard the word ‘gweilo’ spoken by many people on the Project, almost daily. I recall that it was a word used in conversations by Mr Leung, Mr Lai, Mr Ngai and Isabella Yeung, Personal Assistant to Mr Torka. I recall a particular incident communicated to me by Mr Grant, whereby he recounted Mr Leung saying to his previous line manager on the Central – Wan Chai bypass that Mr Grant worked on before being transferred to the Project ‘I see you got rid of the gweilo’. The way it was communicated to me was such that Mr Leung was congratulating Mr Grant’s former manager for no longer having a foreigner working on the Central – Wan Chai Project.
45. To further exacerbate the matter, I recall a conversation that I had with Ms Yeung during late 2016 that took place in the Lan (sic) Tin Project Site Office. The conversation involved Ms Yeung complaining how she was being treated by Mr Shi Da, Site Manager. During the course of the conversation, that lasted for five minutes or less, was that China State employees were questioning why so many gweilos are working on the project or words substantially to that effect. This felt unfriendly and hostile pushing away of me as I was a foreigner. Creating a them and us working environment.
46. A number of other incidents occurred during my time working within the blasting term on the Project that further created a hostile and discriminatory environment towards non-Chinese employees. I have already referred at paragraph 36 above to a conversation with Mr Torka during October 2016 when he said that Mr Leung did not want any non-Chinese blasting engineers involved with blasting works.
47. The issue of racism against non-Chinese employees was well known to those working on the Project from almost the beginning. I had a discussion with Jon Bayliss, General Superintendent. The discussion took place outside of his office near the barbecue area. During the course of this discussion, Mr Bayliss said ‘you won’t believe the discussion I just had with TO [Wong]’ before going on to tell me that his line manager, Mr Wong, said that he did not regard Mr Bayliss as having a future on the project because he did not speak Chinese.
48. […]
49. During January 2017, Mr Grant, Construction Manager (Tunnels) showed me an email that had been sent to him from Mr Leung. The email was shown to me on Mr Grant’s mobile device (which I think was a Blackberry) in the barbecue area on the site. The reason Mr Grant was showing me the message was because he could not believe how Mr Leung was referring to non-Chinese sub-contractors. I believe Mr Grant was showing me the email because he thought it was incredulous that Mr Leung would use that sort of terminology in a professional context. I recall that on a very brief reading of the email on the mobile device, I similarly found the language to be offensive. Mr Grant did not forward the email to me.
50. I did not see this email again until it was discovered by Leighton […]”
217.The email referred to by the claimant reads:
“[…] Darren,
My colleagues advised me of the followings and asked me to review the actual site condition:
• […]
• The operator from Atlas Copco is Chinese, Robodrill is Foreigner, for which we need to consider our subby/direct supervision.
• […]”
218.Ms Herbert submitted:
“The discrimination that Francis Haden suffered occurred against a background of hostility where ‘gweilo’ was used in a derogatory sense and words like ‘foreigner’ acted to demarcate differences in race and prevent integration. Although there is no case law dealing specifically the term ‘gweilo’ or ‘鬼佬’ in Hong Kong and, consequently, whether or not it is racially discriminatory in the context of employment, there are cases in other jurisdictions, involving other derogatory terms, which can assist in how to approach the issue.”[22]
219.Ms Herbert then referred this court to the cases of Anca Lacatus v Barclays Execution Services Limited & Ors [2021] Employment Tribunal 3201295/2019 & 201137/2020 (7 September 2021), Empower Scotland Ltd v Khan [2005] UKEAT 0012_05_0209 and Tesco Stores Ltd & Anor v Wilson [2000] UKEAT 749_98_1201.
220.In conclusion, she submitted:
“Further, one must consider the context in which the term was used. It was not uttered in a social setting between friends but rather, at work, where one would expect the employer to protect against racially derogatory terms. It is all a question of context and this court should consider whether or not there is any place for the use of such terms in the employment context where such terms are bound to lead to division between races and when there is absolutely no need or benefit in drawing any racial distinction at work.”
221.My views in respect of the matters raised by Ms Herbert are as follows.
222.Firstly, as Ms Herbert recognised, one must consider the context in which the term “gweilo” was used. I am unable to find that this term, even if it was used in a work place, would necessarily carry a derogatory meaning as alleged. The case authorities referred to by Ms Herbert can offer very limited, if any at all, assistance to the court because they dealt with other expressions.
223.Secondly, for the above reason, it is important for the claimant to state clearly in his evidence the context in which the term “gweilo” had been used. However, insofar as it was the claimant’s evidence that people were referring to him in their conversations in which the said term was used[23], I regret to say that I must reject that evidence. It was just his “feeling” which may or may not be correct. He only overheard that other people were using this term, and those people were apparently not talking to him at the material time! As aforesaid, this term has been widely used in Hong Kong. By merely saying that he was “one of the few non-Chinese present on the Project”, without more, it is not enough to prove that he was indeed the subject matter of those conversations.
224.Thirdly, the claimant claimed that “the word used in the manner it was made [him] feel like an outsider who was not welcome – a culture of not really wanting any foreigners around”[24]. The claimant did not particularise what “manner” he was referring to which gave him such a feeling. On my part, I do not accept that the mere usage of this term would give such a feeling at all. In my view, the claimant had either misunderstood the real meaning of the term or he had exaggerated his “bad feeling”.
225.Indeed, Mr Grant had told the court in his oral evidence that in his 12 years’ experience living in Hong Kong, he did not know any expatriate (including himself) who had any issue against people using this term, and that this term had been used by not only local people but also expatriates.
226.Mr Torka had also given evidence in court on the use of the term “gweilo” similar to those given by Mr Grant. Mr Torka even said that he had used this term himself.
227.Ms Herbert argued that although Mr Grant said he did not have any issue with the word “gweilo”, his opinion is irrelevant for the purpose of this trial. I do not know why she would make this argument because it was she who asked Mr Grant during cross-examination “whether he considered the term racist or offensive” in the first place. In any event, I would reject this argument.
228.Fourthly, Ms Herbert relied on an incident in which Mr Grant recounted Mr Leung saying to Mr Grant’s previous line manager on the Central – Wan Chai bypass project that “I see you got rid of the gweilo”[25] and according to the claimant, the way it was communicated to him was such that Mr Leung was congratulating Mr Grant’s former manager for no longer having a foreigner working on the Central – Wan Chai project. With respect, it is difficult to understand the relevance of this incident. As the claimant pointed out himself in his statement, this was said in another project. Moreover, judging from the way those words were said as described by the claimant, the word “gweilo” was just used to describe that particular foreigner who had left the project. I cannot see how it can be said that this shows there was any hostile and discriminatory environment even in that project, not to mention in the Project.
229.Fifthly, Ms Herbert then referred to a statement made by “China State employees” who asked “why so many gweilos are working on the project or words substantially to that effect”[26]. The claimant said he “felt unfriendly and hostile pushing away of [him] as [he] was a foreigner. Creating a them and us working environment”. I am not prepared to make any finding that there was a hostile and discriminatory working environment against non-Chinese employees on the basis of such hearsay evidence. The circumstances under which those “China State employees” made such a statement were simply unknown.
230.Sixthly, in paragraph 47 of the claimant’s witness statement, the claimant referred to a conversation he had with Mr Bayliss who said Mr Wong Tak On told him (Mr Bayliss) that he did not have a future in the project because he did not speak Chinese. The respondent’s counsel had drawn this court’s attention to the fact that Ms Herbert had not pursued this matter in cross-examination nor did she refer to this matter in her opening submissions. Ms Herbert disagreed (in her reply submissions) that this matter was abandoned. However, she did not make further submissions on this matter (she did not make reference to this matter in her closing submissions at all).
231.It suffices for me to say that taking this matter to the highest, what the claimant stated in his witness statement only related to Mr Bayliss’ linguistic ability rather than race. There is nothing in this complaint.
232.Lastly, the claimant referred to an email which was sent by Mr Chris Leung (Deputy Project Director of the Joint Venture) on 7 December 2016 in which he stated:
“The operator from Atlas Copco is Chinese, Robodrill is Foreigner, for which we need to consider our subby/direct supervision.”
233.The above email was actually shown by Mr Grant to the claimant in the first place. Mr Grant had frankly accepted in his evidence that he could recall he was very surprised by the term “Foreigner” being used to describe Robodrill, even though he did not take it to have any racial connotation.
234.On my part, I do not think the usage of the word “Foreigner” in one email is adequate for the court to find that there was a background of racial hostility.
235.I have covered the reason why Mr Chris Leung said he did not want non-Chinese blasting Engineers in the earlier part of this Judgment and I won’t repeat it here.
236.Having considered all the matters raised by the claimant, I find that he has failed to prove that there was any background of racial hostility in the Project.
F5. Lack of Process
237.In her written closing submissions, Ms Herbert argued that:
“66. The Respondent claims that Mr. Haden was not terminated due to race, but due to performance issues. One significant indicator that this cannot be the case is the lack of contemporaneous documents showing that there was any performance issue and, to the contrary, the appraisals show the opposite.
67. Mr. Torka claims to have warned Mr. Haden on his entry to the Project but Mr. Grant, who was at that meeting has no recollection of such being said [Day 2/AM] and the only note of the meeting, held on 1 August 2016 was Mr. Haden’s handwritten diary note, which had no reference to such being said either [TB2/239]. This warning was never put into writing as one might expect if it occurred, nor was it the subject of a performance review.
68. Mr. Torka also talked about verbal warnings on 24, 25, 26 January 2017 but none of these were documented either and Mr. Torka claims that Mr. Haden did not appear to heed his warnings at their meeting on 27 February 2017, another indicator, it is submitted, that the warnings were likely not given.
69. The Respondent itself has a procedure for performance review and this was not undertaken in respect of Mr. Haden’s alleged performance issue either. The policy speaks of stage 1, a written note to be kept on file for 6 months. Following this stage 2 involves a 1st written warning and stage 3 a final warning. However, Mr. Torka accepted none of this was followed for Mr. Haden [Day 3/AM]. In a company such as the Respondent it seems incredibly unlikely, that if this were a true performance issue, it would go entirely undocumented and without following the procedure in the policy.”
238.I do not agree that there was no contemporaneous document showing that there was any performance issue on the part of the claimant. I have in the earlier part of this Judgment referred to an email which Mr Torka sent to Ms Jessica Poon by which Mr Torka had listed a number of performance issues which the claimant agreed in the meeting on 27 February 2017 to improve on. The claimant has never questioned the accuracy of the agreed improvement plan as recorded in the said email, nor did he say, for example, that he had agreed to such an improvement plan only for the sake of keeping his job with the respondent.
239.Another contemporaneous document disclosed by the respondent in the present action is an email sent by Mr Torka on 11 March 2017 at 9:42am to Mr Craig McGrory (General Manager, HR & Support Services of the respondent) and Mr Freeman. Mr Torka’s email was sent upon the request of Mr McGrory (made by email on 10 March 2017 at 2:17pm), as the latter had received the claimant’s email sent on 10 March 2017 at 1:33pm by which the claimant claimed for the first time that his employment with the respondent was terminated by reason of race discrimination. Mr Torka was therefore instructed to provide all notes relating to the conversation with the claimant and the decision to terminate. In Mr Torka’s email, he had set out very clearly and comprehensively the problems with the claimant. Given the relatively short time between Mr Torka’s reply and Mr McGrory’s request for a report, there was not much time for Mr Torka to make up any stories (even if he were minded to do so, which I do not believe to be the case).
240.The claimant’s communication problem was also mentioned in the meeting between the claimant and Mr Torka in the meeting on 27 February 2017. From the transcripts, it can be seen that the claimant did not deny having that problem.
241.As to whether Mr Torka had given the claimant any warning on 1 August 2016 when the latter joined the Project, I must say that I have my doubt as to whether Mr Torka did give a warning as such. If he had done so, Mr Grant would not have no recollection of that being given.
242.However, whether Mr Torka did give such a warning to the claimant on 1 August 2016, in my view, does not matter, as I am satisfied that he had talked to the claimant about his problems on 24, 25 and 26 January 2017. This was recorded in detail in Mr Torka’s email sent on 11 March 2017 which I have referred to above. As I said, I believe that what were stated in the said email are true.
243.Lastly, I come to Ms Herbert’s argument on the respondent’s failure to follow the procedure for performance review. With respect, this argument is a non-starter. It is clear that the stages 1, 2 and 3 of the Disciplinary Procedure relied on by Ms Herbert are only applicable to cases in which an employee is dismissed for cause. This is clearly borne out by the requirement that the right of appeal would have to be referred to in stage 3 (written final warning) and stage 4 (dismissal), because it can be seen that under section 5.9 of the procedure, it is stipulated that:
“An employee who is dismissed for Cause may submit an Appeal in writing against the decision to dismiss […]”[27]
244.It is therefore my finding that the claimant has failed to prove that he had been terminated in breach of any stipulated procedure within the respondent, and he had also been duly warned about his performance issues before he was terminated.
G. DRAWING OF INFERENCE FROM THE PRIMARY FACTS
245.To sum up, I have made the following findings of primary facts:
The Claimant’s Job Performance
(1) Technically, the claimant was very competent and very good at his job.
(2) The claimant had demonstrated that he could not maintain good working relationship with his colleagues and others, and as a result he had developed strained relationship with others especially the members of the Blasting Team.
Bypassing the claimant – Hiring of Blasting Team
(3) Mr Torka did inform the claimant about Mr Chris Leung’s preference of Chinese Blasting Engineers, and the reason behind such a preference was to ensure that the Blasting Engineers would be able to communicate with the local shotfirers in Cantonese.
(4) Mr Torka did consult the claimant on the employment of Mr Ngai, and the claimant did not object against the engagement of Mr Ngai at the material time.[28]
(5) Although it was not the claimant who made the final decision to employ Mr Ngai, the making of such a decision did not amount to bypassing the claimant or usurping his function as alleged.[29]
Bypassing the claimant – Team not getting back information/not attending meetings and workshops
(6) There had been a non-engagement problem in the Joint Venture because the staff members came from two separate companies respectively.
(7) The claimant had indeed been left out in two emails sent by Mr Chris Leung on 8 February 2017 and 18 February 2017 respectively but it was unclear as to why that happened and whether it was a deliberate act on the part of Mr Leung.
(8) In any event, Mr Leung did not leave the claimant out because he was a non-Chinese.
(9) The claimant had indeed been excluded from certain communications. However, it is also clear that the claimant’s other colleagues, such as Mr Torka, were not so excluded.
(10) Members from the site formation and tunnel construction teams were reluctant to deal directly with the claimant on work-related matters because of his temperament, and they had asked Mr Torka and others to communicate with him.
(11) While the claimant had not been able to get information he needed for discharging his duty as a Blasting Team Leader, it is evident that Mr Torka had been able to get the information he requested for from other staff members of the Joint Venture.
(12) There were China State staff who did not turn up at meetings with the claimant.[30]
Bypassing the claimant – Meeting on 9 February 2017 and the subsequent (lack of) communication
(13) The claimant did not save the relevant blasting documents (including the latest versions of CBARs and BMSs) in the respondent’s server.
(14) It was necessary to hold the 9 Feb meeting before the return of the claimant from his annual leave.
(15) Staff of the Joint Venture other than Mr Ngai were not trying to exclude the claimant when they held the 9 Feb meeting.
(16) No one in the Joint Venture had taken the initiative to report to the claimant as to what had happened in the 9 Feb meeting, not even his Blasting Team members.
(17) There was no realistic chance for the Joint Venture to exclude the claimant in the preparation of the blasting documents because, at the end of the day, the claimant, as the Blasting Team Leader, was the very person who would have to approve and sign such documents before those documents could be submitted.
(18) It was a deliberate decision on the part of Mr Ngai to exclude the claimant from the recipients list of his email sent on 20 February 2017, and there was no valid reason why he should do so.
(19) The relationship between Mr Ngai and the claimant must have been very tense, and as a result of which they did not communicate with each other.
(20) The claimant has failed to prove that he had been excluded from any meeting on 16 February 2017 as alleged.
Bypassing the claimant – Mr Torka’s Actions[31]
(21) Blasting Team members would rather talk to Mr Torka than to the claimant.
(22) Mr Torka did not assist Blasting Team members to bypass the claimant by talking to them directly, but rather, he acted as the bridge of communication between them and the claimant.
(23) No disciplinary action or otherwise had been taken against the site formation team and the surface blasting team members for not communicating with the claimant.
The Meeting On 27 February 2017
(24) The decision to terminate the claimant’s employment was purely an internal matter of the respondent and Mr Lai was not involved at all.
(25) The claimant had raised about “racism” in this meeting. This shows that it was not an after-thought that he considered there was racism in the Project.
(26) Mr Torka decided not to terminate the claimant’s employment right away in the 27 February 2017 meeting despite his initial plan only because of his intention to give the claimant a final chance, since the claimant had agreed to make improvements on the problematic areas identified.
“Gweilo”
(27) Even if the term “gweilo” was used in a work place, it would not necessarily carry a derogatory meaning as alleged.
(28) The claimant has failed to prove that there was any background of racial hostility in the Project.
Lack of Process
(29) The claimant had been duly warned about his problems before his employment was terminated.
(30) The claimant has failed to prove that his employment had been terminated in breach of any stipulated procedure within the respondent.
246.When considering whether inference can be drawn on direct discrimination, it is important to bear in mind the question that the court has to focus on, namely, whether the claimant’s employment was terminated on the ground of race, not whether there was any racial issue within the Blasting Team, nor within the Joint Venture.
247.It should also be remembered that the burden is on the claimant to prove discrimination on the balance of probabilities. Once the court is satisfied that the claimant is able to show from the primary facts that inferences could be drawn from the circumstances that disclosed a possibility of discrimination, the court would look to the respondent for an explanation. If there is no reasonable or satisfactory explanation put forward, then the court would be entitled to infer discrimination as a matter of common sense (Lam Wing Lai v YT Cheung (Chingtai) Ltd [2006] 1 HKC 323 at 338; Chan Choi Yin Janice v Toppan Forms (HK) Ltd [2006] 3 HKC 143 at 162).
248.So, was the claimant able to show from the primary facts that inferences could be drawn from the circumstances that disclosed a possibility that his employment was terminated on the ground of race?
249.I hold the firm view that he had failed to do so for the following reasons:
(1) Although there is no dispute that the claimant was technically very capable, it is also evident that he had other problems which made him difficult to work with others as a team;
(2) Although Mr Chris Leung had expressed his preference of employing Chinese Blasting Engineers, it was only because of the factor of linguistic ability rather than race. In any event, that was only related to the post of Blasting Engineer but not Blasting Team Leader. Moreover, given the court’s acceptance that the decision to terminate the claimant’s employment was made internally by the respondent, Mr Leung’s preference (or, taking the claimant’s case to the highest, the Joint Venture’s preference) on Blasting Engineer would not have anything to do with the decision of the respondent in terminating the claimant’s employment;
(3) The non-engagement problems in the Joint Venture were caused by the fact that the staff were coming from 2 different companies. There is not enough evidence to show that it was due to race. In any event, there is nothing in evidence which shows that such non-engagement problems could be linked with the respondent’s decision to terminate the claimant’s employment;
(4) While the claimant had been left out in Mr Chris Leung’s 2 emails, it is clear that the matter had nothing to do with race, because other non-Chinese people such as Mr Torka were not left out as such. In any event, it must be borne in mind that Mr Chris Leung was employed by China State rather than the respondent. As submitted by the respondent, whatever stance taken by or conduct on the part of China State could not be attributed to the respondent. There is also nothing which could link this in any way with the respondent’s decision to terminate the claimant’s employment;
(5) Even though the claimant had been excluded from certain communications, the evidence shows that it was due to his inter-personal relationship with others rather than race;
(6) Ms Herbert had drawn the court’s attention to the fact that, no matter whether Mr Grant liked the claimant or not, Mr Grant still worked with him without bypassing him, and she pointed out that the situation was very different from the site formation team and the surface blasting team, which had refused to communicate with the claimant. She stated that that being the case, “there was something else that stopped the predominantly Chinese site formation and surface blasting teams from communicating with”[32] the claimant. With respect, I do not accept this argument as she had over-simplified the matter. The fact that Mr Grant was willing to communicate with the claimant did not mean per se that there was any race element which had come into play. It is also a quantum leap for Ms Herbert to suggest that “if Mr. Haden were also local Chinese the lack of communication, failure by the team(s) to attend his meetings and workshops, bypassing and usurping from his role, would not have occurred”[33]. In my view, the communication problem was down to the claimant’s poor relationship with others. It is also evident that the site formation team and surface blasting team had no problem with communicating with Mr Torka. This shows clearly that “race” was not the reason causing such non-communication.
(7) Although the 9 Feb meeting was held in the claimant’s absence, it cannot be said that the intention of those Joint Venture personnel who had attended the meeting were minded to bypass the claimant, as it is reasonable to expect that the running of the Joint Venture should not be suspended by reason of the claimant’s taking of annual leave;
(8) In any event, in reality, the claimant could not be excluded as such, because at the end of the day, the blasting documents could not be submitted to the Government without the claimant’s approval;
(9) Although the court accepts as a matter of fact that Mr Ngai did exclude the claimant in his email sent on 20 February 2017, it is also a finding of this court that it was due to his tense relationship with the claimant. It had nothing to do with the claimant’s race. Furthermore, it should be borne in mind that Mr Ngai was from China State, and he was a subordinate of the claimant. It is beyond imagination to say that the respondent’s decision to terminate the claimant’s employment was due to the fact that Mr Ngai did not like the claimant. I have not lost sight of the possibility that Mr Lai (who also came from China State, and was more senior than the claimant in the Joint Venture) might want to protect Mr Ngai. However, there was no evidence that senior officials from the respondent had had any communication with Mr Lai before the decision to terminate the claimant’s employment was made on 21 February 2017;
(10) Although the court accepts that the claimant did in his mind think that there was “racism” in the Project (such that he had raised this issue at the meeting with Mr Torka on 27 February 2017), as a matter of fact, his exclusion (which led him to have such a view) was caused by (1) the different cultures of two different companies and (2) his poor inter-personal relationship with others, rather than race. In any event, his complaints on “racism” were in substance all directed to personnel from China State but not the respondent. Such complaints cannot be used as materials to infer that the respondent’s decision to terminate was made on the ground of race;
(11) The mere use of the term “gweilo” cannot show that there was any racial discrimination, not to mention termination of the claimant’s employment on the ground of race in the present case;
(12) The claimant, through his counsel, had emphasised that it was the Chinese members of the Joint Venture who had discriminated against him (Ms Herbert highlighted that the members of the surface blasting team and the site formation team were “predominantly Chinese”). However, it is evident that the people from the respondent who were involved in the decision to terminate the claimant’s employment were all non-Chinese: Mr Torka, Mr Freeman and Mr McGrory and Mr Boyd Merrett;
(13) Moreover, it is also evident that the inter-personal relationship problem on the part of the claimant did not stem from race: Mr Grant had given evidence that he had a problem working with the claimant. Mr Torka also gave evidence that Mr Peter Ayres had stated his wish not to join the claimant’s team.
250.So far I have limited my analysis on those arguments which were based on matters properly “pleaded” in the Notice of Claim. For the sake of completeness, I also express my views on findings of facts which were made on issues which were not covered in the Notice of Claim below.
251.In my view, even taking these additional matters into account, the claimant has still failed to show there is any possibility that his employment was terminated on the ground of race:
(1) Although there were China State staff who did not turn up at meetings with the claimant, I am of the view that it was because of (1) different cultures of the two different companies involved and (2) the claimant’s personal relationship with them. It was not because the claimant was a non-Chinese. In any event, there was not a hint of evidence which could link this matter with the respondent’s decision to terminate the claimant’s employment;
(2) Other Blasting Team members were unwilling to communicate with the claimant not because of his race but because of his temperament;
(3) Although no disciplinary action or otherwise had been taken against the site formation team and the surface blasting team members for not communicating with the claimant, it cannot be inferred that this could have anything to do with the respondent’s decision to terminate the claimant’s employment.
252.That should be enough to dispose of the claimant’s claim against the respondent.
253.Even if I were wrong, and even if the respondent should have been asked to give an explanation for the decision to terminate the claimant’s employment, I am of the view that the respondent has given reasonable and satisfactory explanation on the matter. I am satisfied that there is clear evidence which supports the respondent’s case that the claimant:
(1) had a poor working relationship with others (especially the China State staff);
(2) could not work with others as a team;
(3) had complained about China State openly in meetings with external parties;
(4) had confronted Mr Lai in a series of emails on 21 February 2017 which was seen by Mr Torka as damaging his effort in building a successful and integrated team from staff employed by two separate companies;
(5) performed in such a way which led to Mr Torka’s taking the view that he (the claimant) was unable to lead a team to work as a functional unit of individuals with diverse backgrounds.
254.Contemporaneous documents have been placed before the court (for example, Mr Torka’s emails dated 27 February 2017 and 11 March 2017 respectively) to support the aforesaid case.
255.In the circumstances, it is my finding that the claimant’s employment was terminated not on the ground of his race, but because of his aforesaid problems. In other words, those problems are the real cause of the termination of his employment.
256.Once this conclusion is reached, it is straight-forward to apply the comparator test. In my view, a hypothetical comparator should be a Chinese who is a Blasting Team Leader and has the same problems which I have referred to above – someone who has poor working relationship with others and who cannot work with others as a team. In my view, Mr Torka would have recommended, and the respondent would have accepted, the termination of the employment of such a person.
257.For the above reasons, the claimant’s action herein should be dismissed.
H. RELIEF
258.In the light of the conclusion reached above, I would only deal briefly with the issue on quantum.
259.One shall start with section 70(4) of the Ordinance, which provides that, in proceedings brought for claims in respect of discrimination, harassment and vilification, the District Court may:
(1) make a declaration that the respondent has engaged in conduct, or committed an act, that is unlawful under the Ordinance and order that the respondent shall not repeat or continue such unlawful conduct or act;
(2) order that the respondent shall perform any reasonable act or course of conduct to redress any loss or damage suffered by the claimant;
(3) order that the respondent shall employ or re-employ the claimant;
(4) order that the respondent shall promote the claimant;
(5) order that the respondent shall pay to the claimant damages by way of compensation for any loss or damage suffered by reason of the respondent’s conduct or act;
(6) order that the respondent shall pay to the claimant punitive or exemplary damages; or
(7) make an order declaring void in whole or in part and either ab initio or from such date as may be specified in the order, any contract or agreement made in contravention of this Ordinance.
260.In the Notice of Claim, the claimant asked the court to grant one or more of the following remedies:
(1) A declaration that the respondent has engaged in a conduct, or committed an act, that is unlawful under the Ordinance and an order that the respondent must not repeat or continue the conduct or act;
(2) An order that the respondent must apologise in writing to the claimant and implement anti-discrimination awareness training for all senior staff and directors;
(3) An order that the respondent must pay to the claimant damages by way of compensation for any loss or damage suffered by reason of the respondent’s conduct or act that is unlawful under “one or more of the above-mentioned Ordinances”[34], in particular:
• Save for limited non-related freelance work and despite his best efforts, the claimant has not been able to secure commensurate employment since the termination of his employment on 28 February 2017 and, therefore, claims for loss of income, including bonus (full particulars to be provided)
• HK$200,000 injury to feelings
• Interest
• Costs
(4) An order that the respondent must pay to the claimant punitive or exemplary damages.
261.In his written opening submissions and written closing submissions, the claimant no longer mentioned about “written apology”. I will take it that he has abandoned this relief.
262.On the other hand, in the respondent’s written closing submissions, the respondent did not make any submissions on the declaration sought by the claimant. I will therefore assume that the respondent has no objection against the form of declaration as proposed by the claimant, in the event liability is established.
263.The remaining issues concern quantum.
H1. Injury to feelings
264.While there is no doubt that the court has power to make an award for injury to feelings in discrimination cases, it is not bound to do so, and such an award should not be automatically made upon the finding of discrimination. In Alexander v Home Office [1988] 1 WLR 968 at 977C-F, it was held that:
“Whilst I agree that in the substantial majority of discrimination cases the unlawful conduct will cause personal hurt, in the sense of injury to feelings, ... I do not think that this must ‘inevitably’ follow. A proper inference to draw in a case such as this may be that the discrimination will cause a plaintiff hurt of a particular kind. But unless the court can and feels it right to draw that inference, then the mere fact that a defendant is guilty of racial discrimination is not in my opinion in itself a factor affecting damages.”
265.In the present case, the claimant’s employment had been terminated. I have no doubt that he would be upset by such a decision on the part of the respondent, since he had given this court an impression that he had very high ego. Indeed, in his evidence, he said he was proud of himself having achieved a lot in the Project.
266.I therefore hold the view that an award for injury to feelings would be appropriate. The question is: how much?
267.Ms Herbert has referred this court to the case of K & Others v Secretary for Justice sued for and on behalf of Fire Services Department and Hong Kong and Excise Department [2000] 3 HKLRD 777 which in turn made reference to the case of Employment Appeal Tribunal (EAT) (Smith J.) in Prison Service & Ors. v. Johnson [1997] ICR 275, 283 in which the relevant principles applicable to the assessment of awards of damages for injury to feelings had been summarized as follows:
“We summarise the principles which we draw from these authorities: (i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor’s conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham M.R., be seen as the way to ‘untaxed riches.’ (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (v) Finally, tribunals should bear in mind Sir Thomas Bingham’s reference to the need for public respect for the level of awards made.”
268.The above principles have been endorsed by the Court of Appeal in Yuen Wai Han v South Elderly Affairs Ltd [2005] 2 HKLRD 277. In that case, the Court of Appeal had also referred to the case of Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 in which Lord Justice Mummery set out three broad bands of compensation for injuries to feelings which are as follows:
(1) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.
(2) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.
(3) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.
269.Ms Herbert has drawn this court’s attention to the case of De Souza v Vinci Construction UK Ltd [2018] ICR 433, [2017] EWCA Civ 879 by which the Vento bands have been uplifted as follows:
(1) Top band, for the most serious cases involving lengthy campaigns of discrimination: awards of between £25,700 and £42,900;
(2) Middle band, for serious cases not meriting the top band: awards of between £8,600 and £25,700;
(3) Lowest band, for the least serious cases involving isolated or one-off acts: awards of between £900 and £8,600.
270.Ms Herbert argued that the appropriate award falls in the middle band in the present case and therefore she proposed $200,000 as the damages for injuries to feelings.
271.With greatest respect, I hold the view that the “uplifted bands” mentioned in the case of De Souza v Vinci Construction UK Ltd has no application in Hong Kong, because the adjustment therein was caused by the issuance of a Practice Note in Simmons v Castle [2013] 1 WLR 1239 pursuant to which it was directed that all claims for pain and suffering, loss of amenity, physical inconvenience and discomfort, social discredit and mental distress shall be raised by 10%. That Practice Note is of course not applicable here in Hong Kong.
272.It is difficult to make an assessment in the present scenario where I have ruled against the claimant factually on a number of his allegations of having been excluded and bypassed, because the extent to which he had been so bypassed or excluded might well have bearing on the amount of damages which he is entitled to.
273.Doing the best I can, I assess damages for injuries to feelings at $60,000. Although I agree that the present case falls within the middle band, it seems to me that it should be at the low end of such a band. I have also taken into account the fact that the claimant himself had also been adopting an antagonistic attitude against others.
H2. Loss of income
274.I accept the respondent’s argument that the right question to ask is how long would the claimant reasonably require to obtain an alternative employment.
275.On this question, the respondent’ s counsel has cited a number of cases such as Li Pui Ha v Wong So Kee Transportation Ltd [2014] 4 HKLRD 254 at paragraphs 23 and 26; 秦秀清 對 長鴻鋁窗裝飾工程有限公司 [2020] 2 HKC 146 at paragraph 105; Cheung Hoi Ling v Triumph International (DCEO 6/2013, unreported, 27 November 2015) at paragraphs 65 – 66; 郭永新 與 羅容佳 (DCEO 2/2007, unreported, 4 December 2008) at paragraphs 27 – 28 and K & Others v Secretary for Justice [2000] 3 HKLRD 777 at 817J-818B.
276.In the cases of Li Pui Ha, Cheung Hoi Ling and 郭永新, 6 months were considered the reasonable period for the claimants therein to seek an alternative job, whereas in 秦秀清, such a period was fixed at 3 months.
277.In my view, when deciding the length of such reasonable period in the present case, these cases should be read with caution, because the nature of the occupations of those claimants were relatively common.
278.However, the present case is different. While the claimant is a professional, his expertise is in blasting, and it is more likely than not more difficult for him to get another job of the same nature because I do not think there are a lot of blasting projects in Hong Kong.
279.Ms Herbert proposed that a multiplier of 12 months to 18 months be adopted and, by virtue of some calculations included in her written closing submissions, submitted that the amount of damages under this head should range from $839,381.79 to $1,455,981.79[35].
280.The respondent’s counsel, apart from submitting that the proposed period was arbitrary and excessive, did not challenge the calculation done by Ms Herbert.
281.Taking into account the longer time that the claimant would have to take in seeking alternative employment, I would allow 8 months as the reasonable period.
282.According to Ms Herbert’s calculation, the claimant’s annual salary at the material time was $1,233,200. Hence, the total of 8 months’ salary would be $822,133.33.
283.It seems that the claimant had not earned any income within those 8 months (between 1 March 2017 and 31 October 2017).
284.The claimant’s loss of income which he is entitled to if liability is established would therefore be assessed at $822,133.33.
H3. Punitive or exemplary damages
285.In William Allan v Messrs Ng & Co (a firm) & Another [2012] 2 HKLRD 160, Kwan JA referred to the legal principles about exemplary damages and had the following to say:
“52. The rationale for exemplary damages is not to compensate, but to punish. They are additional to an award which is intended to compensate a plaintiff fully for the loss he has suffered, both pecuniary and non-pecuniary. See, for example: A v Bottrill, supra at para 29 per Lord Nicholls; Kuddus, supra at para 51 per Lord Nicholls, para 95 per Lord Scott. This extract from Lord Nicholls’ judgment in A v Bottrill at para 20 would suffice:
‘The starting point for any discussion of the limits of the court’s jurisdiction to award exemplary damages is to identify the rationale of the jurisdiction. This is not in doubt, although different forms of words have been used, each with its own shades of meaning. For present purposes the essence of the rationale can be sufficiently encapsulated as follows. In the ordinary course the appropriate response of a court to the commission of a tort is to require the wrongdoer to make good the wronged person’s loss, so far as a payment of money can achieve this. In appropriate circumstances this may include aggravated damages. Exceptionally, a defendant’s conduct in committing a civil wrong is so outrageous that an order for payment of compensation is not an adequate response. Something more is needed from the court, to demonstrate that such conduct is altogether unacceptable to society. Then the wrongdoer may be ordered to make a further payment, by way of condemnation and punishment.’
53. It is therefore important to distinguish the different roles of compensatory and exemplary damages. It may be easy to lose sight of this distinction if the court is to make a ‘combined award’ of compensatory and exemplary damages.
54. The second important thing, which follows from the rationale, is that exemplary damages are a remedy of last resort. This is the ‘if, but only if’ test mentioned by Lord Devlin in Rookes v Barnard, supra at 1228, in which he stated that when assessing damages in a case in which exemplary damages are available, the jury should be directed that:
‘… if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum.’
55. The importance of this principle was emphasised by the House of Lords in Broome v Cassell & Co, supra at 1060A to D, 1082A to B, 1089D to E, 1104D to E, 1116C, 1121G to 1122A, 1126C to D. Applying the ‘if, but only if’ test, the question the court should ask is whether the remedies available to it are inadequate to punish and deter the defendant. It is only if the available remedies are inadequate to punish and deter the defendant for his conduct that exemplary damages should be considered.
56. Thirdly, awards of exemplary damages are governed by a principle of moderation and restraint, see Lord Devlin in Rookes v Barnard, supra at 1227 to 1228. Exemplary damages are ‘analogous to a criminal penalty’, so ‘principle requires that an award of exemplary damages should never exceed the minimum sum necessary to meet the public purpose underlying such damages, that of punishing the defendant, showing that tort does not pay and deterring others.’ (John v MGN Ltd [1997] QB 586 at 619F to G)”
286.Hence, the question to ask is whether the respondent’s conduct was so outrageous that an order for payment of compensation is not adequate and an additional order is required to be imposed so as to punish the respondent and to demonstrate the court’s disapproval of such conduct. The breach of the discrimination law per se is not enough. In A v Bottrill [2003] 1 AC 449, Lord Nicholls had given further guidance of what would amount to “outrageous conduct” at paragraph 23 thereof:
“[…] in the nature of things, cases satisfying the test of outrageousness will usually involve intentional wrongdoing with, additionally, an element of flagrancy or cynicism or oppression or the like: something additional, rendering the wrongdoing or the manner or circumstances in which it was committed particularly appalling. It is these features which make the defendant’s conduct outrageous [...]”
287.Ms Herbert relied on the case of 秦秀清 對 長鴻鋁窗裝飾工程有限公司 (Chun Sau Ching v Cheung Hung Aluminum Window Decoration Works Ltd) [2020] 2 HKC 146 and submitted that the present case is similar to that case because the respondent herein has refused to admit that the termination of the claimant’s employment was based on his race, and this had caused further distress to him. Moreover, it was alleged that the general hostile environment to non-Chinese at the respondent had “rubbed salt on his wounds”.
288.I do not accept Ms Herbert’s argument. The facts in the present case are simply not comparable to those in 秦秀清 in which the employer of the claimant therein had unreasonably challenged the facts of pregnancy and miscarriage of the claimant therein.
289.In the present case, even if liability were established, I cannot see how it can be said that the respondent had committed any outrageous conduct as such. The alleged “general hostile environment”, even if existed, was undeniably only proved to be found in the Project but not in the respondent.
290.Furthermore, I do not think the mere fact that the respondent had decided to contest a claim of discrimination would amount to “outrageous conduct”.
291.I would therefore refuse to make any award under this head even if liability is established.
I. ORDER
292.By reasons of the aforesaid, I dismiss the claimant’s claim.
J. COSTS
293.Section 73E(3) of the District Court Ordinance (Cap.336) stipulates that:
“Each party to any proceedings in the Court in the exercise of its jurisdiction under the Race Discrimination Ordinance (Cap. 602) shall bear its own costs unless the Court otherwise orders on the ground that—
(a) the proceedings were brought maliciously or frivolously; or
(b) there are special circumstances which warrant an award of costs.”
294.I therefore make a costs order nisi that there be no order as to the costs of the action.
295.The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper[36]) within 14 days hereof.
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( H. Au-Yeung ) |
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District Judge |
Ms Elizabeth Herbert, instructed by Hugill & Ip, for the claimant
Mr Mike Lui and Ms Kelly Cheng, instructed by Minterellison LLP, for the respondent
[1] Paragraph 3 of the claimant’s reply submissions
[2] Paragraph 11 of Mr Grant’s witness statement
[3] Paragraph 27 of the claimant’s written closing submissions
[4] At pages 742 – 744 of the trial bundle
[5] At page 1282 of the trial bundle
[6] Page 847 of the trial bundle
[7] Page 848 of the trial bundle
[8] Page 803 of the trial bundle
[9] Adopted from the respondent’ written reply submissions, the accuracy of which was not challenged by the claimant’s counsel
[10] Page 861 of the trial bundle
[11] Page 877 of the trial bundle
[12] Paragraph 24 of Mr Torka’s witness statement
[13] Paragraph 8 of the claimant’s supplemental witness statement
[14] Paragraph 52 of the claimant’s witness statement
[15] At page 860 of the trial bundle
[16] At page 864 of the trial bundle
[17] At page 866 of the trial bundle
[18] Mr Ngai’s CV, at page 782 of the trial bundle
[19] Adopted from the respondent’s written reply submissions (the accuracy of which was not disputed)
[20] Page 888 of the trial bundle
[21] Paragraph 20 of Mr Torka’s witness statement
[22] Paragraph 17 of the claimant’s written closing submissions
[23] See paragraph 43 of the claimant’s witness statement quoted above
[24] Ditto
[25] Paragraph 44 of the claimant’s witness statement
[26] Paragraph 45 of the claimant’s witness statement
[27] At page 1185 of the trial bundle
[28] The issue was not pleaded in the Notice of Claim
[29] The issue was not pleaded in the Notice of Claim
[30] The issue was not pleaded in the Notice of Claim
[31] The issues raised were not pleaded in the Notice of Claim
[32] Paragraph 61 of the claimant’s written closing submissions
[33] Paragraph 61 of the claimant’s written closing submissions
[34] It is unclear what other Ordinances the claimant was referring to apart from the Race Discrimination Ordinance
[35] It is unclear why Ms Herbert has deducted the claimant’s income earned beyond the 12-month period and 18-month period respectively from the income which the claimant would have earned from his employment with the respondent during the said periods. Such deductions have reduced the range of damages asked for substantially.
[36] Consent have been given by the parties on the last day of the trial
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