Temporosa, Ma. Carla Arangote, The Executrix of the Estate of Guting, Joan Sarmiento, Deceased v. Choy Chiu Yee Rita
Read the full judgment text of DCEO 13/2019 on BabelCite. This DCEO judgment was delivered on 8 July 2024.
1. This is the trial of two consolidated actions for: (1) unlawful discrimination and harassment contrary to ss 6, 11(2)(c) and 22 of the Disability Discrimination Ordinance, Cap 487 (“DDO”) [1] ; and (2) unreasonable and unlawful termination of employment contrary to s 33(4B) of the Employment Ordinance, Cap 57 (“EO”) and/or in breach of the implied term of mutual trust and confidence [2] .
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DCEO 13/2019 & DCCJ 3408/2020 (Consolidated) [2024] HKDC 747 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EQUAL OPPORTUNITIES ACTION NO. 13 OF 2019 --------------------------- BETWEEN
--------------------------- IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 3408 OF 2020 --------------------------- BETWEEN
--------------------------- (Consolidated pursuant to the Order of His Honour Judge Leung dated 11th September 2020) ---------------------------
------------------- JUDGMENT ------------------- A. Introduction 1.This is the trial of two consolidated actions for: (1) unlawful discrimination and harassment contrary to ss 6, 11(2)(c) and 22 of the Disability Discrimination Ordinance, Cap 487 (“DDO”)[1]; and (2) unreasonable and unlawful termination of employment contrary to s 33(4B) of the Employment Ordinance, Cap 57 (“EO”) and/or in breach of the implied term of mutual trust and confidence[2]. 2.Both actions are brought on behalf of Ms Joan Sarmiento Guting (“Joan”), who sadly passed away on 18 August 2018 in the Philippines, by the executrix of Joan’s estate, Ms MA Carla Arangote Temporosa (“Carla”) who is the Claimant/Plaintiff[3] of these actions. The Claimant was represented by counsel Ms Denise Souza (“Ms Souza”). 3.Joan was employed as a foreign domestic helper in Hong Kong until her dismissal on 30 April 2017 by Ms Choy Chiu Yee Rita (“Rita”). Rita is the Respondent/Defendant[4] of these actions. The Respondent was represented by counsel Mr Chan Yip Hei (“Mr Chan”). B. Background facts and the parties’ respective case 4.In this section, I shall set out the background facts which are largely not in dispute between the parties and where there is dispute, the parties’ respective case. 5.Joan was employed by Rita to work at Flat G, 47th Floor, Tower 2, Phase 1, Ocean Shores, 88 O King Street, Tseung Kwan O (“the Residence”) under 2 successive employment contracts:
6.At the material time, Rita, Rita’s husband Mr Lam Chak Yam (“Lam”) and their two adult children, Kevin Lam (“Kevin”) and Karen Lam (“Karen”), lived at the Residence. A pet dog was also kept at the Residence. 7.On 5 March 2017, Joan was hospitalized and later diagnosed with inter alia: (1) cancer of cervix uteri; (2) oedema; (3) acute renal failure; (4) hyperkalaemia; (5) metabolic acidosis; (6) hypocalcaemia; (7) fluid overload; (8) bladder mass; and (9) deep vein thrombosis (“the Illness”). Rita (who was not in Hong Kong at the time as she was on holiday with Lam) through Kevin knew of Joan’s hospitalization on the same day. 8.On 14 March 2017, Lam went to the hospital to visit Joan and spoke with the doctors to seek details of Joan’s medical conditions. 9.Joan was hospitalized from 5 to 31 March 2017 (“1st Hospitalization”). During this time, Joan received various treatments which included:
10.On 31 March 2017, Joan was discharged from the hospital and returned to stay at the Residence. She was granted sick leave for the period from 5 March 2017 until 28 April 2017. 11.The Claimant’s case is that from 31 March 2007 to 24 April 2017, Joan was subjected to the following continuing acts and/or omissions of discrimination by Rita and/or her agents (Lam, Kevin and Karen) by reason of her disability:
12.These are all denied by the Respondent. It is the Respondent’s case that:
13.On 24 April 2017, whilst attending the hospital for scheduled radiotherapy, Joan was admitted for treatment of percutaneous nephrostromy in the right kidney (“2nd Hospitalization”). She was discharged and returned to stay at the Residence on 28 April 2017. Upon discharge from hospital, she was granted sick leave from 24 April 2017 until 29 April 2017. 14.Some time between the late hours of 30 April 2017 and early hours of 1 May 2017, Joan was asked to come out of her room and was served with a letter terminating her employment with effect from 1 May 2017 (“the Termination Letter”) by payment in lieu of notice. She was asked to sign on the Termination Letter, pack her things and leave the Residence. 15.The Claimant’s case is that Joan was treated unfavourably and/or harassed by the following acts:
16.This is denied by the Respondent whose case is as follows:
17.On 12 May 2017, Joan lodged a complaint against Rita for disability discrimination with the Equal Opportunities Commission (“EOC”). On 30 October 2017, EOC decided to discontinue its investigation of the complaint. 18.On 29 June 2017, Joan commenced proceedings in the Labour Tribunal for dismissal without valid reason, termination in contravention of s 33(4B) of EO and failure to pay food allowance. Due to her medical condition and inability to give evidence, those proceedings were adjourned sine die. 19.By a Consent Order made on 20 May 2020, leave was granted to Carla to restore the claim on terminal payment and award for compensation under s 32P, and to transfer the claim to the District Court as action number DCCJ 3408/2020. 20.On 4 October 2019, a Notice of Claim was filed against Rita in DCEO 13 of 2019. 21.Upon the consolidation of these two actions by the Order of His Honour Judge Leung of 11 September 2020, the Notice of Claim was amended (“ANOC”) and stood as the consolidated Statement of Claim of the Claimant. On 6 November 2020, the Respondent filed an Amended Notice to Response as her consolidated Defence. On 4 December 2020, the Claimant filed her Amended Reply as her consolidated Reply. C. Applicable Principles C1. Discrimination 22.Section 6 of DDO covers both direct and indirect discrimination. The Claimant relies only on direct discrimination which is covered by s 6(a) of DDO. It provides:
23.Section 8 of DDO deals with the “Comparison of cases under s 6”. It provides:
24.In M v Secretary for Justice [2009] 2 HKLRD 298 at §45, the Court of Appeal set out a two-stage approach for determining whether direct discrimination has taken place. First, one should compare the treatment of the complainant with the treatment of a suitable comparator (“the comparator question”). Second, in the event that less favourable treatment is established, to decide whether the less favourable treatment was given “on the ground” of the complainant’s disability (“the causation question”). The comparator question and the causation question are separate questions. 25.However, it has been recognized that in some cases the identification of an appropriate comparator may cause unnecessary complication or confusion. In this regard, in Sit Ka Yin Priscilla v Equal Opportunities Commission & Ors (DCEO 11/1999, 11 February 2010), His Honour Judge Lok (as he then was) adopted the approach of Lord Nicholls of Birkenhead in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 that instead of finding an appropriate comparator, one ought to concentrate on the factual inquiry of why the complainant was treated in the way she was. The plaintiff sought leave to appeal and submitted inter alia that the judge had adopted the wrong approach in following Shamoon but leave to appeal was rejected. 26.In subsequent cases, the Shamoon approach has been followed. See e.g.: Haden v Leighton Contractors (Asia) Ltd [2022] 1 HKLRD 995; C v The Chinese University of Hong Kong [2022] HKDC 77 and Lee Chick Choi v Hong Kong Golf Club [2023] 2 HKLRD 1117. The parties are agreed that this is the appropriate approach in the present case if no appropriate comparator can be found. 27.In the context of employment, s 11(2) of DDO provides:
28.Section 11 provides the legal basis for a civil claim. The word “dismissing” must be given its broadest meaning to mean any form of termination of employment. It therefore includes termination by way of notice or wages in lieu of notice. Although giving notice or payment of wages in lieu of notice can discharge an employer’s obligation under the contract of employment or under EO, it does not exempt an employer for liability under this section. However, the dismissal is only unlawful under s 11 if it is discriminatory within the meaning of s 6. Otherwise, an employer would not be able to terminate the employment of an employee with a disability, while the employee is under no sanction for fundamental breaches of his contract and is free to treat his contract of employment with contempt and consider himself not bound by its terms. See Aquino Celestina Valdez v So Mei Ngor Betty (Unrep) DCEO 3/2004, 12 September 2005, §12. 29.The case of Aquino Celestina Valdez concerned a contract of employment which was terminated by summary dismissal. It was held by His Honour Judge To (as he then was) that a dismissal is not discriminatory if summary dismissal is justified. I am of the view that similarly, if an employer is able to prove some other reason for dismissal which, although falls short of sufficient reason to justify summary dismissal, is unrelated to the employee’s disability, dismissal by notice or payment of wages in lieu of notice is not unlawful under s 11. See ibid, §14. 30.As for the burden of proof, this is on the claimant. The standard of proof is on a balance of probabilities. There is no presumption of discrimination and there is no shifting of evidential burden of proof. However, the employee’s burden is partially lightened by s 3 which provides:
31.That said, as explained by His Honour Judge Muttrie in L v Equal Opportunities Commission and Ors (Unrep), DCEO 1&6/1999, 13 November 2002 at §53, s 3 could not be intended to provide that in any case where disability is a causa sine qua non (background cause) it should be taken as the causa causans (operative cause). That would produce the absurdity in there being an irrebuttable presumption that an action taken in respect of a disabled employee was caused by his disability. 32.This view is supported by the helpful explanation by the learned judge in Aquino Celestina Valdez at §14 on how in reality an employee can discharge the burden of proof to prove that dismissal is connected to his or her disability:
33.See also Yeung Chung Wai v St Paul’s Hospital [2006] 3 HKC 521, §21 where Her Honour Judge Marlene Ng (as she then was) held:
34.See also Law Miu Kuen Sally v Sunbase International (Holdings) Limited (Unrep) DCEO 7/2012, 4 March 2016, §28 per His Honour Judge Alex Lee:
C2. Harassment 35.Section 22(2) of DDO makes it unlawful for a person, in the case of a person with a disability employed by him, to harass that employee. 36.Harassment is defined under s 2(6) of DDO as:
37.The definition of harassment comprises two elements: one subjective and the other objective. The claimant has to prove the conduct complained of was unwelcome to him, and also that a reasonable person having regard to all the circumstances would have anticipated that he would be offended, humiliated or intimidated by it. The unwelcomed conduct must be “on account of” the disability. If there are two or more reasons for the harassing act, so long as the employee can prove one of the reasons is his disability, the harassing act is taken to be performed on account of the employee’s disability. See L at §65; and Aquino Celestina Valdez, §16. C3. Employment protection under EO 38.Under s 32A(1)(c) of EO, an employee may be granted remedies against his employer under Part VIA where he is dismissed by the employer other than for valid reason within the meaning of s 32K and in contravention of various provisions including s 33(4B) of EO. 39.Section 33(4B) provides:
40.Section 2(1) of EO defines “sickness day” as “a day on which an employee is absent from the employee’s work by reason of the employee being unfit for work on account of injury or sickness”. 41.The effect of s 33(4BAA) is that an employer who terminates the contract of employment of an employee whilst on sickness day is taken to have terminated the contract otherwise than in accordance with s 9, unless he can prove otherwise or that at the time of termination, he reasonably believed he has grounds to so terminate. 42.Apart from establishing that there was a contravention of s 33(4B), in order to be granted remedies under Part VIA, the employee must be dismissed for reasons other than a valid reason under s 32K. Section 32K provides:
C4. Implied term of trust and confidence 43.The parties do not dispute that there is an implied contractual obligation on an employer not to without reasonable and proper cause, conduct himself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Thus in Semana Bachicha v Poon Shiu Man [2000] 2 HKLRD 833 at 848I-849A, applying Malik v Bank of Credit and Commerce International SA (in liquidation) [1998] AC 20, it was held that the employer’s wrongful conduct might constitute wrongful dismissal and at the same time, a breach of the implied trust and confidence term, the latter causing continuing financial loss not confined by the usual wrongful dismissal measure. 44.In her opening submissions, Ms Souza invited me to adopt the similar approach as in the case of Semana Bachicha and Waliyah v Yip Hoi Sun Terence [2017] 1 HKLRD 1082 to find that a breach of the discrimination ordinance was also a breach of the implied term of trust and confidence. 45.In her closing submissions, Ms Souza confirmed that only if I found Rita’s conduct and treatment of Rita was on the grounds of Joan’s disability then it would necessarily be considered conduct calculated or likely to destroy or seriously damage the degree of trust and confidence in the employment relationship. C5. Fact finding and assessment of credibility of witnesses 46.In respect of making findings of facts and the assessment of credibility, I bear in mind the guidance of Deputy High Court Judge Eugene Fung SC in Hui Cheung Fai and Another v Daiwa Development Ltd and Others (unreported), HCA 1734/2009, 8 April 2014 at §§77-83:
47.I would also take heed of the more recent observations of the English Court of Appeal in NatWest Markets Plc v Bilta (UK) Ltd (In Liquidation) [2021] EWCA Civ 680 at §§49-51:
D. Agreed Issues 48.The following are agreed by the parties as the issues arising in these actions that require determination by me:
49.It seems to me that at the heart of these issues that I have to decide is what was or were the real cause(s) for Rita’s conduct towards Joan and her termination of Joan’s employment. E. The Claimant’s evidence and my assessment of the evidence E1. General remarks 50.By way of general remarks, I should say that the fact-finding exercise which I have to perform is not an easy one as Joan had passed away by the time of the trial of these actions. I therefore did not have the opportunity to observe her give live evidence and be cross-examined as a means to assess her credibility. 51.The difficulty is further compounded by the fact that there are not many contemporaneous documents. The Claimant’s case is heavily dependent on hearsay evidence. 52.Apart from the various statements made by Joan to the EOC and Labour Tribunal (collectively, “Joan’s Statements”) after her dismissal by Rita, for which hearsay notices have been filed under s 47A of the Evidence Ordinance, Cap 8 and O 38, r 20 of the Rules of the District Court, Cap 336H, the Claimant has called 3 witnesses who were Joan’s friends: Carla, Ms Lydia Encila Dellomas (“Lydia”) and Ms Teresa Dalisay Braos (“Teresa”). However, all of them, not having resided at the Residence, did not have direct knowledge of the treatment received by Joan. They only testified to what they were told by Joan after the event. Their evidence therefore is of limited assistance to the issues that I have to decide. E2. Joan’s Statements 53.In her Complaint Form submitted to the EOC on 12 May 2017, in gist, Joan stated that:
54.In a Statement of Further Information submitted to EOC on 5 July 2017, Joan supplemented further information as part of her complaint against Rita. She sought to respond to the 4 reasons for dismissal set out in the Termination Letter issued by Rita to her on 30 April 2017 to the following effect:
55.On 25 September 2017, she set out in a statement her response to questions from EOC to the effect:
56.Joan also made a Statement of Facts to the Labour Tribunal on 29 June 2017. She contended that the contents of the Termination Letter and reasons provided therein were false. She repeated her belief the decision to terminate the contract was taken when she began her medical treatment. She maintained despite not having been issued sick leave certificate for 30 April 2017, which was her rest day, and 1 May 2017, which was a public holiday, she was effectively on sick leave. 57.Joan further made a supplemental statement on 7 July 2017 to the Labour Tribunal in relation to the damages for loss of earnings which she claimed she would have earned from the date of termination until the end of her contract with Rita. She also claimed for damages for pain and suffering due to the callous way the employment was terminated when she was thrown out of the Residence in the early hours in the morning when she was seriously ill and very weak. 58.On 21 October 2017, Joan also made a 2nd Supplemental Witness Statement in response to the Statements made by Rita and Lam. Her response was similar to the matters stated in her statements to EOC. She maintained therein that Rita had no valid grounds to dismiss her summarily and therefore dismissed her by payment of wages in lieu of notice. She further maintained that she was dismissed in contravention of s 33(4B) of EO and Rita was liable to pay her food allowance pursuant to clause 5(b) of the employment contract. She further produced a sick leave certificate recommending sick leave from 24 April 2017 to 1 May 2017, superseding the earlier medical certificate only covering the period up to 29 April 2017 in support of her claim she was dismissed contrary to s 33(4B) of EO. 59.Mr Chan did not take issue on the admissibility of Joan’s Statements. However, he urged this court to attach little or no weight to these hearsay evidence. 60.He referred this Court to the decision of Queeny Au-Yeung J in Chung Hon v Ng Sau Chun [2019] 2 HKLRD 430 where the learned judge exercised her discretion not to give leave to adduce a declaration of a deceased person. At §19, the learned judge held that although the court has a discretion to give leave to adduce hearsay evidence including declarations of a deceased person, in law, if a witness does not come to court to be cross-examined, the court has a discretion to disallow a party from relying on that witness statement. That has always been the normal rule in a civil litigation. Nonetheless, the learned judge, at §22, recognised that the court has a discretion to grant leave to adduce declarations which was not a contemporaneous document and consider the weight to be attached to it at the trial having regard to s 49(2) of the Evidence Ordinance, Cap 8 (“Cap 8”). 61.Section 49 of Cap 8 provides:
62.Going through the matters I should have regard to one by one, in respect of s 49(2)(a), I accept that it would not have been reasonable and practicable for the Claimant to have produced the maker of those statements as Joan has passed away by the time of the trial of these actions. As for s 49(2)(b), none of the statements were made contemporaneously to the conduct complained of. As for s 49(2)(c), I am satisfied that the statements related to Joan’s own personal experiences and knowledge of the matters she spoke of. As for s 49(2)(d), the statements were made to either advance her claim for compensation in the Labour Tribunal or complaint against the Respondent to EOC. As such, there would be motive for her to conceal or misrepresent matters in order to advance her own case. As for s 49(2)(e), Ms Souza accepted that the statements were prepared with the assistance of an NGO and were edited accounts or made in corroboration with another or for a particular purpose. As for s 49(2)(f), no submissions were made that there are circumstances in which the evidence was adduced as hearsay which suggest an attempt to prevent proper evaluation of its weight. As for s 49(2)(g), although Ms Souza asserted that the statements are consistent with the evidence produced in these proceedings, the requirement is that the evidence is consistent with evidence previously adduced by the party. Her evidence in these proceedings are not evidence previously adduced by her. 63.In Chung Hon, the learned judge held at §29 that when there are so many queries as to a declaration which was not a contemporaneous document, the weight that the court is likely to accord to it would be small. In that case, the learned judge held that the probative value was not such that it would persuade the court to give leave for adducing it because the prejudicial effect to the plaintiff by not being able to cross-examine the maker is far too great in that case. 64.Having regard to my assessment of the matters in s 49(2) of Cap 8 and bearing in mind that the Respondent had no opportunity to cross-examine Joan on those statements, which would have been important in the present case where essentially it is one’s word against the other, whilst I would not disallow Joan’s Statements (and I have not been asked to do so), I would attach little weight to them. E3. Carla’s evidence 65.Carla first met Joan at their church sometime between September to December 2016. They attended weekly Sunday worship together. Plainly, they are good friends as is evident from Joan appointing Carla as her executrix. 66.According to Carla, Joan had told her that, after she was discharged from the hospital, Rita seemed very displeased with her and would not speak to her. Joan felt that she had an infectious disease and was to be avoided by all at home including the dog. When Mr Chan put to her that the usual communication between an employer and employee (as in Joan’s case) would be about work, she agreed. This is consistent with the nature of the WhatsApp messages between Joan and Rita prior to her hospitalization that have been put in evidence. 67.Carla also accepted in cross-examination that because as Joan was on sick leave and was not required to work, there was no need to talk as much. However, Carla said that there was also no communication to inquire with Joan how she was. When Mr Chan asked could it be that Rita did not talk to Joan because she did not want to disturb Joan’s rest, Carla said she did not know as it was a matter between Joan and Rita. She fairly accepted that she never had the chance to observe Rita’s response or emotions. 68.Furthermore, Carla testified that Joan also told her once after Joan had cooked, Rita threw out all the pots and pans. This was understood by Joan to mean that she was not allowed to cook food. However, Joan did use the rice cooker to cook food in her room. When shown a video of Joan cooking rice in the kitchen, Carla said that she did not know if that was the one time that Joan was cooking in the kitchen. It seems to me it would be a great coincidence if the only time Joan was cooking in the kitchen this was captured by video by Rita, unless it was with the foresight that Joan would commence these proceedings making the very complaint that she was not allowed to cook in the kitchen that this video was made. Moreover, it was never alleged in Joan’s Statements that Rita did not allow her to cook and threw away the pots and pans. She only said that she was not given or given insufficient food such that she had to buy food herself to cook or ask for permission to cook food. 69.Carla also said that Joan was also not allowed to use the fridge to store food. According to Carla, although Rita never expressly told Joan not to use the fridge, Joan got the feeling she had an infectious disease and was being avoided and should not even store her food in the fridge. However, I note that in none of Joan’s Statements did she herself complain that she was not allowed to use the fridge in the Residence or had the feeling she should not use the fridge. 70.Furthermore, Carla’s evidence was that she was aware that their friend Teresa brought food to Joan because she was not given any food by her employer and was not allowed to cook or use utensils in the kitchen. However, she accepted in cross-examination that apart from what Joan or her friends at church told her, she had no direct knowledge that Joan was not given food by her employer. 71.Similarly, as for Joan having told Carla that she had difficulty getting in and out of her upper bunk bed, apart from what she was told and she could imagine it would be difficult to move around with the drainage bags, she accepted that she could not verify for herself if it was true. 72.Carla further testified that she first knew about the termination of Joan’s employment when Lydia called her around 12:29am on 1 May 2017. She then called Joan who was already outside the Residence and about to board a taxi. Joan then called her when she was inside the taxi. She told Joan that she should go to the police station. Eventually, around 2am, she met Joan at Tsim Sha Tsui Police Station. The police officers told them that the dismissal was not within their jurisdiction and that they should make a report to the Labour Department instead. Rather than to sleep on chairs in the police station, they decided to go to the church to stay the night. 73.They arrived at the church around 4am. When helping Joan to hang up her wet clothes, she asked Joan why she had so many wet clothes. Joan told her that she had to wash her clothes by hand as Rita did not allow her to use their washing machine after she was hospitalized. However, it seems to me the fact that the clothes were wet cannot corroborate that Joan was not allowed to use the washing machine after she became ill. Whether they were washed by hand or by washing machine, they may still be wet when, without prior warning, Joan was requested to leave the Residence. 74.Carla said that she did not know if Joan was allowed to use the washing machine before she was hospitalized. From Joan’s Statements, Joan said that she was never allowed to use the washing machine in the two years she worked for Rita. However, this is contradicted by the WhatsApp messages between Rita and Lam on 12 December 2016 which stated:
75.Given that Carla’s evidence is that she only heard from Joan about the complaints against Rita and the dismissal after Joan was dismissed, there would be motive for Joan to exaggerate to get sympathy from her friends and in order to advance her claims and complaints against Rita. I also take into account the hearsay nature of Carla’s evidence which is not corroborated by any contemporaneous written record, her friendship with Joan which may motivate her to embellish the Claimant’s case as is evident from her evidence being somewhat inconsistent and goes further than Joan’s own case. Overall, I do not regard her evidence as very reliable and cogent. E4. Lydia’s evidence 76.Lydia has known Joan since 2015 when they attended the same church together. It was Lydia who persuaded Joan to see the doctor on 5 March 2017 when they were at church on noticing Joan’s legs and face looked swollen. She accompanied Joan to the hospital and thereafter visited her often during her hospitalization. 77.Lydia’s evidence was that Joan had told her by phone that after she was discharged from the hospital, Rita’s attitude changed. Rita ignored her and sent fewer messages than before. Joan felt as if Rita thought that she could catch Joan’s illness. However, in cross-examination she admitted that she did not know or was in no position to find out how Rita and Joan got along and whether she was treated unfavourably because of her illness. 78.Joan told her that Rita had told her not to use the gas stove and had thrown out the cooking utensils that Joan had used to cook in the kitchen. Joan was able to cook using a rice cooker in her room. As mentioned already, even in Joan’s Statements there was never mention of the pots and utensils being thrown away. There is also never any mention by Joan that she was specifically not allowed to use the gas stove. 79.Lydia’s evidence was that Joan told her over the phone that she was not being provided with food and that is why she asked if anyone in church would volunteer to provide Joan with food. Teresa then volunteered to cook and take food to Joan. 80.Furthermore, her evidence was that Joan told her although she could use the fridge, it was always empty so she had to bring food from her church and put it in the fridge. She also testified that because Rita was not eating at home, she had to cook her own meals. 81.Concerning the termination of Joan’s employment, her evidence was that around 12:29am on 1 May 2017, she noticed that she missed some calls from Joan. She then called back Joan who sounded panicky. Joan explained to her that her employment was terminated and she was wanted out of the house in the middle of the night and her bags were being packed up. Lydia then called the church. It was Carla who answered the phone. Carla, upon being explained the situation, agreed to call Joan and offer her assistance. 82.Again, I am of the view that given the hearsay nature of Lydia’s evidence, which is not supported by any contemporaneous records between her and Joan, the inconsistency even with Joan’s own case and her understandable sympathy with Joan’s predicaments, which may motivate her to embellish the Claimant’s case, her evidence is also not very reliable or cogent. E5. Teresa’s evidence 83.Teresa first met Joan at church in 2016 and they would see each other every week there. 84.Her evidence was that she heard from the Pastor at church on 1 April 2017 that upon discharge from the hospital, Joan was sick and needed food. As she worked in the next block from the Residence, she volunteered and did cook three meals a day for Joan. In her witness statement, she stated that between 1 and 6 and 8 and 23 April 2017, she prepared three meals for Joan. I clarified and confirmed with Teresa that her evidence was that every day during that period she prepared three meals for Joan. 85.However, from her WhatsApp messages with Joan, at least in respect of the period 18 to 23 April 2017, there were occasions when she was asking Joan if she had food and Joan replied she had food (bread or rice) or that she had not cooked yet. Some messages mentioned that Joan still had a cup noodle. In other messages, Teresa asked her not to eat cup noodles. It seems to me that those contemporaneous records undermine Teresa’s case that she had cooked all three meals daily for Joan. Besides, given that Teresa was also working as a domestic helper at the time, it is unlikely that she could cook three meals and have it delivered to Joan every day. If she had done so, she would not have had to ask if Joan had food still and whether she had cooked. 86.When shown those WhatsApp messages by Mr Chan, although Teresa agreed that those messages did not show any complaint about lack of food, she said there were complaints orally by phone (although this was never mentioned in her witness statement) and that all the food referred therein were all given to Joan by her. Her evidence was that if she did not give or buy food to her, Joan would have no food. I find it incredible that she can be sure that all the food were from her and not brought by Joan herself or from Rita. 87.Furthermore, in her witness statement she said that Joan told her that her employer did not allow her to use the pots, pans and cooking utensils. She also said that she once gave Joan a pot but later learnt from the church leader than Joan was not allowed to cook in the kitchen or use the gas stove. However, in cross-examination she said that Joan was allowed to use a rice cooker to cook in the kitchen. There is therefore some inconsistency in her evidence. As mentioned, the fact that Joan was not allowed to use the gas stove, pots and pans and cooking utensils were never mentioned in Joan’s Statements. All these inconsistencies undermine Teresa’s credibility. 88.Another matter that was not in her witness statement nor even mentioned in Joan’s Statements but which she testified to was that Joan was not allowed to go in and out of the Residence freely and had to seek Rita’s permission. This is contradicted by the written reminder sent on 31 March 2017 from Lam to Joan point 2 of which states, “If you feel unwell, and need to go to public hospital, you can freely leave our home and leave a message to us afterwards and notify us when you will be back from hospital. ...”. 89.She also mentioned in her oral evidence that once she was told by Joan when bringing her food that she could not use the fridge in the Residence. Again, this was not a matter in her witness statement nor in Joan’s Statements. 90.Apart from the complaint about food, Teresa’s evidence is that only after Joan was hospitalized, she was not allowed to use the washing machine. Teresa said that she had given Joan some washing detergent to wash her clothes by hand. 91.Her evidence was also that Joan once remarked to her that her employer seemed to be afraid of Joan and said it was as though she was suffering from an infectious disease such as AIDS. However, in cross-examination, she accepted that this was Joan’s subjective and personal feeling but she would not know nor could verify how in fact Joan got along with Rita. 92.Given the various internal inconsistency in Teresa’s evidence, inconsistency with the contemporaneous documents produced by herself, the hearsay nature of her evidence and apparent motivation to embellish the Claimant’s case probably out of sympathy to Joan’s predicaments, I do not find Teresa a credible and reliable witness. F. The Respondent’s evidence and my assessment of the evidence F1. General remarks 93.Rita was the only witness for the Respondent. She was not much shaken in cross-examination which lasted the entire day. However, I bear in mind that as the Respondent, she is not an independent witness and would have motive to lie or conceal matters in defending these claims against her. I would therefore place more weight on the contemporaneous documents or records where available and make findings of facts based on matters which are consistent with those documents or records. F2. Joan’s work performance before the decision to terminate her employment 94.Rita’s evidence was that since Joan started to work for her on 31 January 2015, her performance was just “so-so”. There were incidents where Joan wilfully disobeyed orders or was habitually neglectful in her duties. By way of examples:
95.All these matters are supported by the contemporaneous WhatsApp messages between Joan and Rita. From these messages, it can also be seen that on a number of occasions prior to 8 January 2017, there were messages from Rita to Joan reminding Joan not to hang clothes outside because it was raining. 96.Rita said that despite repeated warnings, the performance of Joan in January and February 2017 became even worse. There is some support for Rita’s dissatisfaction with Joan from the WhatsApp messages between Joan and Rita during this period. For example, on 7 February 2017, there was a message from Rita, “Joan, when u fry the salmon fish, it should be fully cooked, kevin complained last time which u are half cooked, thx”. Also, on 10 February 2017, Rita asked Joan, “Could u bring the black stroller to my car now. Where is the stroller?” 97.Although on 25 January 2017 Rita sent Joan a message, “Joan, thx for your hard work the last 2 days I appreciated. Sorry for my bad temper always claim against you. Hv a good rest n sleep well tonight with God bless. Thank you (smiley face emoji)”, in cross-examination, Rita explained that if Joan did something well, she would send her appreciation but if she did not, then she would have to remind her either face to face or by WhatsApp messages. That was the only one message where Rita praised Joan. 98.On 9 February 2017, Rita also complained to Karen that the deteriorating performance of Joan was testing her bottom line. The following are the WhatsApp exchange between Rita and Karen on 9 February 2017:
F3. Discovery of the photos taken by Joan and discussion to terminate her employment 99.According to Rita, from 12 February 2017, Rita and Lam found the situation unbearable. In addition to the poor performance of Joan, Rita discovered that Joan had took some sexy and seductive photos of herself at the Residence and posted them on her Facebook. Rita explained that she was a Christian, was relatively traditional and conservative, this action crossed the line of propriety and decency as well as was in breach of the “Rules and Regulations to be followed” (“Rules”) which Joan signed and agreed to follow within the contract period. Rule 3 stated “… Do not wear shorts or sexy dress while working. …”. 100.Although one may dispute whether those photos were sexy and seductive, they do show the shoulders and much of Joan’s chest which in cross-examination Rita said that was why she considered the photos were “sexy”. In cross-examination, she refused to agree with Ms Souza that those photos were not indecent or offensive. From the WhatsApp message, it is evident that Rita was much displeased by what she discovered Joan had done and it plainly was the trigger point for the discussion to terminate Joan’s employment. 101.Moreover, from the WhatsApp messages between Rita and her family, it could be seen that there was a decision made on 13 February 2017 to terminate Joan’s employment on 13 March 2017 after Rita and Lam returned to Hong Kong from their trip. It is not disputed that at that time, Rita and her family did not know and would not have known that Joan was ill. 102.There was first the following discussion between Rita and Karen in the morning of 13 February 2017:
103.Later that morning, there was the following exchange between Rita and Lam:
104.In the family group chat on WhatsApp (愛生事家庭), there were the following messages:
105.These messages support Rita’s evidence that the termination of Joan’s employment was agreed on 13 February 2017 but deferred to 13 March 2017 because of a number of reasons including:
106.Although in Joan’s Statements, it was suggested that the time-stamp of the WhatsApp messages could have been altered, at trial this matter was never pursued by Ms Souza nor is there any evidence to support such a serious allegation. 107.It can also be seen from the WhatsApp messages that Rita referred to Joan as “evil spirit or temptations” after discovering the photos taken and posted on Facebook by Joan. F4. Rita’s attitude towards Joan on being told Joan was ill 108.Rita’s evidence was that she was first told about Joan’s illness on 5 March 2017 whilst she and Lam were still travelling in Europe. 109.Lam visited Joan on 14 March 2017 at the hospital. Rita does not dispute that she did not visit Joan. In cross-examination, she said that she was not told directly from Joan about her conditions but only learnt about it from her family members. This is supported from the WhatsApp messages before me. 110.Furthermore, in her witness statement, she stated that as her employer she did wish Joan to recover speedily and welcomed her home upon her discharge such as by moving items from Joan’s room to their room to make more space for her. Lam also reminded Joan of her rights such as that she was not required to work or provide any service during her sick leave period. These are all supported by the evidence adduced by the Respondent. 111.On the other hand, from the WhatsApp messages between Rita and her family, there were several instances when Rita referred to Joan as “溫神” which is contrary to her case that she cared about Joan and welcomed her home. Ms Souza submitted that these messages supported the Claimant’s case that Rita ignored Joan and seemed displeased to see her. 112.When asked why she called Joan by that term, Rita explained that when Joan behaved in a “tricky” manner she was angry and would call her that. She said “溫神” and “evil spirit” had the same meaning. Whilst she agreed that “瘟神” which has the same sound as “溫神”, which means contagious or good of illness, she denied she called Joan that after she was ill. 113.She also said she only called Joan “溫神” when she was angry with Joan and only within the family chat group. She explained that when Joan took those “sexy photos”, she was angry with Joan as she didn’t know what was her motive for taking the photos. Was it to seduce her husband or her son? She also gave the example of Joan asking the doctors, the nurses, Lam and Kevin if she could stay at a boarding house. Rita explained that this was a tricky behaviour because it could have led her to break the law in allowing her to reside elsewhere. She also was angry that Joan did not directly communicate with her but with Kevin or Lam and therefore showed no respect to her as employer. 114.It seems plain to me from the WhatsApp messages that Rita’s attitude to Joan was less than welcomed and was even quite hostile on occasions. 115.For example, on the day Joan was discharged, i.e. 31 March 2017:
116.Rita’s explanation was that her calling Joan “溫神” was because the day before, the nurse call saying that she could not find Joan. Rita was very scared and angry as she felt she was responsible for her safety and was thinking whether she was up to some tricky behaviour. 117.On 10 April 2017, in the evening when Joan had sent a message saying she would be coming home late because of delays in the Kwun Tong Line, Rita sent out a message in their family group, “Tell her, NEVER COME BACK!!!”. 118.Then on 11 April 2017, there was a message from Rita to the group: “老豆，今晚我在tkl mtr等你，我不想煮飯喇，個溫神3:00已經死去街喇，佢話QE app 是5:00喎。”. 119.On 25 April 2017, there was the following exchange:
120.On her discharge following the 2nd Hospitalization on 28 April 2017 Rita sent out these messages: “仆街了，個溫神話要回家了”; and “仆街已經回家，個樣精神過我10倍lol”. 121.During cross-examination, Rita did not accept she called Joan these offensive names because Joan was coming home to stay and displayed an attitude that she did not welcome her back. She explained that because Joan did not communicate directly with her on her schedule, it made her very confused and led her to leash out her emotions in front of her family. She denied that she made it clear to Joan that she was unwelcomed. 122.Although Ms Souza suggested the fact that Rita’s witness statement did not mention the various incidents that caused Rita to call Joan offensive names casts doubt on her credibility, I do not consider this matter to dent her credibility because it is only a matter of details. What she has amplified in her oral evidence is more or less consistent with what she had stated in her witness statement that:
F5. Treatment of Joan whilst staying at the Residence from 31 March 2017 up until the termination of Joan’s employment 123.Rita said that prior to Joan’s illness she often would send WhatsApp messages to instruct her to carry out work duties. After she was ill, she did not do so, as to not disturb her and also because she was no longer required to work. She denied that she ignored Joan or caused her family to do so. Rather, her evidence is that it was Joan who was unwilling to communicate with her and her family members and displayed acts of unfriendliness such as slamming the door loudly which startled her and the dog. 124.The slamming of door is supported by Rita’s WhatsApp message to the family group chat on 19 April 2017: “我在房內靈修時，剛剛嗰溫神突然大力bang門和開門，嚇到我都不知道發生乜事，和金仔立刻跑回我的腳底下”. 125.However, out of concern for Joan’s condition, Rita said that she would occasionally knock on Joan’s door to see if she required assistance. She also refuted the allegation that she did not allow Joan to cook in the kitchen. She provided two video clips to support these matters. 126.In one video clip, Rita is filmed knocking on the door and asking if Joan was alright. In another video, Joan is seen washing rice for cooking in the rice cooker inside the kitchen. 127.When put to her by Ms Souza that those videos were intentionally made to appear to be caring about Joan, and she only pretended to care as suggested by Karen in one of the WhatsApp message aforementioned, Rita denied this. She said that she filmed those clips when there was a sudden loud noise so she took her phone and made the video to protect herself. 128.I accept, as submitted by Mr Chan, that as these videos were recorded prior to any complaint and proceedings brought by Joan, it would have required Rita to have predicted the exact particulars of complaint Joan would make against her. I do not think that is inherently likely. 129.I do not accept Ms Souza’s submission that no plausible reason was given why Rita took those videos of Joan. Rita said that she wanted to make the videos to protect herself against possible accusations from Joan in the future. Whilst Ms Souza said that this was inconsistent with Joan’s insisting that she felt genuine care, I cannot agree. One may care about another’s well-being but when it comes legal liabilities against one’s own interest, one can still take steps to protect oneself. As Rita knew that she would be terminating Joan’s employment, even if she had done all things properly and treated Joan well, it does not preclude the possibility that Joan may make unfounded allegations against Rita. As is evident from the discussion with her family, Rita was very careful and sought advice from the Labour Department along the way having decided to terminate Joan’s employment. It is inherently credible that she would act cautiously and taking videos was a means to protect her rights. 130.Rita also denied that no or insufficient food was provided to Joan. She said that there were sufficient food, fruit, canned food and noodles available to Joan. She never received any complaints from Joan about food. 131.Even if I accept the evidence of the witnesses of the Claimant that Teresa had cooked and brought food to Joan, it may not necessarily be because Rita did not provide sufficient food to her. Joan may not wish to cook herself, did not have time to cook or her friends wanted her to eat food of other types for her to recover well or a combination of those reasons. 132.I also note that in Joan’s first statement to the Labour Tribunal she stated, “I was not offered any food so I had to go out to meet friends in the building who provided food to me” [my emphasis]. When Rita responded in her statement that during one time, she accidentally video-recorded Joan cooking in the kitchen and can provide the video for reference, Joan made a supplemental statement stating instead that Rita “denied adequate food” to her and that “only occasionally allowed to take some rice, and I had to ask permission to cook food for myself” [my emphasis]. This change in evidence undermines Joan’s credibility. 133.Furthermore, given the evident care that Rita and her family took to ensure that termination was in accordance with law, it is likely that they also received advice on not discriminating against Joan on grounds of her disability. It is unlikely that they would not provide Joan with sufficient food or indeed do other acts of mistreatment such as harassing, not allowing her to use the washing machine or not making alternative sleeping arrangements for her if they were plainly unsuited to her conditions. It is inherently unlikely they would wish to harm or mistreat her. More likely, they would have wished to dismiss her without any adverse legal consequences and as quickly as possible. 134.In respect of the use of the washing machine, since the Rules stated, “12. Wash your clothes separately. Do not mix up with employers’ clothes.”, it is unlikely that such rule was imposed if Joan was not allowed to use the washing machine since the commencement of her employment. It is also contradicted by the WhatsApp message between Rita and Lam on 12 December 2016 that Joan had used the washing machine to wash clothes of her friends together with her own beddings and clothes. 135.On the other hand, there is not a single contemporaneous record to support Joan’s complaint about lack of food, not being allowed to use the washing machine, not being allowed to cook in the kitchen or a request for alternative sleeping arrangements was made. 136.Furthermore, I accept the reasons given for installing the CCTV were as that stated by Rita. As the CCTV was installed in the living room looking at the main door and dining room, and could not have looked into Joan’s room and kitchen where she would likely often be, I do not accept that it was installed to monitor her. 137.Overall, I find that on the balance of probabilities, the Claimant has not made out the complaints that:
F6. The termination of Joan’s employment 138.The Respondent has produced the CCTV and audio recordings of the termination of Joan’s employment. The transcript of the audio recording was agreed by the parties. 139.During the cross-examination of Rita, various parts of the CCTV recording were played and the transcript of audio recordings were referred to in court. From those, it is not disputed or cannot be disputed that:
140.I accept from the CCTV recording and transcript of the audio recording, whilst Rita’s evidence is that they did not force, rush or pressurized Joan to sign the documents, in reality, there was little choice for Joan but to sign. It was made clear, whether or not she signed, she had to leave the Residence that evening. However, there was no use of force. 141.I also do not find that Joan appeared visibly frightened, vulnerable, intimidated and threatened. Throughout the termination process, Joan seemed to be calm. She even said, “Thank you mum” after signing the documents. She had sufficient time to pack her belongings, get changed, call her friend and was helped to carry her things out of the Residence. G. My findings on the issues G1. Whether Rita and/or her agents discriminated against Joan on grounds of her disability 142.There is no dispute that Joan was a “person with a disability” as defined in s 2(1) of DDO. 143.As for whether there was discriminatory treatment, as the only domestic helper employed by Rita, there is no direct comparator in the present case. 144.As for a hypothetical comparator, Ms Souza submitted in her opening submissions that the appropriate comparator is a person without the relevant disability but in the same or not materially different circumstances. However, a person without the relevant disability would not have been on prolonged sick leave and would not have required the treatments that Joan required. Plainly, the circumstances would not have been materially the same. I am therefore of the view no appropriate comparator can be or has been identified. Furthermore, there is no evidence of how Rita would have treated that comparator. In these circumstances, it is more appropriate to focus on what is/are the real cause(s) of Rita’s conduct and termination of Joan’s employment. 145.In her closing submissions, Ms Souza relied upon a number of primary facts from which she submitted that an inference of discrimination can be inferred. 146.First, she relied upon the fact that Joan was first informed of any intention to terminate her employment on 25 March 2017 when Lam sent a message to Joan to remind her, “you worked with us for 26 months, according to law, you are entitled with accumulated 80 days paid sick leave since first day you admitted to hospital on 5 March 2017. And, we have the right to cease the contract according to the labour law and contract.” This was of course after Rita knew of Joan’s illness. 147.However, on my analysis of the evidence above in section F3, I find that on a balance of probabilities Rita had decided to terminate Joan’s employment on 13 February 2017. With respect to Ms Souza, I cannot accept her submission that it is not evident from the WhatsApp messages between the family that there was a final decision to terminate her employment. I have already referred to the various conversations between the family in the previous section and plainly a final decision had been made. 148.There not being any evidence of a change of heart, I also do not accept that there needs to be any further discussion of this issue or concrete steps taken after 13 February 2017. 149.Indeed, subsequent to 13 February 2017, there were further complaints about Joan’s behaviour from Karen which shows Joan’s performance continued to be unsatisfactory or at least, was regarded as unsatisfactory. It is unlikely that there was a change of heart to dismiss Joan. 150.For example, on 24 February 2017, there was the following WhatsApp exchange between Rita and Karen:
151.Further, I accept Rita’s explanations on why execution of the decision to terminate Joan’s employment was deferred when she and her family were informed of Joan’s illness. This is supported by messages in the family group chat. As for not communicating to Joan any intention to terminate Joan’s employment, the explanation is consistent with the WhatsApp messages, and accords with common sense. 152.Second, Ms Souza relied on the timing and manner of termination. She submitted that as Rita admitted that she terminated Joan’s employment in the late hours of 29 April 2017 so that Joan would not be able to obtain further sick leave certificate thus termination was on grounds of Joan’s disability. However, as I have found that the decision to terminate was already made prior to knowing of Joan’s illness, and I have accepted the explanation why termination had to been deferred, one cannot infer discrimination simply because she chose to execute that decision on a day when Rita would not be in breach of EO by dismissing Joan. 153.There were also two matters which Ms Souza relied upon in her closing submissions:
154.I raised with Ms Souza the fact that neither of these two matters were pleaded nor mentioned in her opening submissions as discriminatory conduct or harassment. They were only first brought up in the cross-examination of Rita and then made clear in closing submissions that they would be relied upon by the Claimant. 155.In response, Ms Souza submitted that in discrimination proceedings there should be a more flexible approach. She referred me to the case of Haden at §49 where after referring to the often-quoted case of Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 for the reminder that it is not acceptable for unpleaded issues to be raised out of evidence, His Honour Judge H Au-Yeung (as he then was) held:
156.However, I note that in the following paragraph it was also said that, “[u]nless 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”. 157.In the present case, when these proceedings were consolidated on 11 September 2020, His Honour Judge Leung ordered the Notice of Claim and Notice of Response do stand as pleadings for the purpose of both actions. Given that pleadings were ordered, the Rules of the District Court and the principles on pleadings are still applicable. 158.In any event, whilst reform has given more flexibility to the pleaders, 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: see Haden, §51. 159.In my view, what act(s) or conduct are alleged to be discriminatory or upon which adverse inference may be drawn, are important facts which should be pleaded so that the Respondent is able to properly prepare her case. This is not simply a case where details or particulars of one’s case is unpleaded or there has been a failure to plead the identity of a suitable comparator. This is particularly unwarranted and unfair where the Claimant was legally represented. 160.Anyways, pleadings aside, I do not think the calling of names within the family group chat can advance the Claimant’s case much further. It is evident from the WhatsApp messages that Rita has been calling Joan “evil spirit” even before knowing of Joan’s illness. Her evidence is that occasionally she referred to Joan as “溫神” because Joan had done something to make her angry. As mentioned, Rita equated evil spirits with “溫神”. The contemporaneous WhatsApp messages support her explanation that calling Joan those names were triggered by some events that made her angry with Joan. 161.Indeed from the WhatsApp messages, it can be seen that she would even call her family members offensive names when she was irritated or some incident occurred. For example, she called Lam “白癡” and Kevin “廢青”. 162.In the circumstances, I would not draw any inference of discrimination from the occasional reference to Joan as “溫神” for which she has provided an explanation for which is not contradicted by any evidence from the Claimant nor is it inherently incredible. Moreover, there is no suggestion nor evidence from the Claimant that Joan was called “溫神” or any offensive names in her face. 163.As for the making of videos of Joan, in cross-examination it was only put to Rita that she took those videos to harass and make Joan feel uncomfortable. It was never put to Rita that this was a discriminatory act or an act from which discrimination can be inferred. Furthermore, there is no evidence from the Claimant that Rita took videos of Joan which were perceived by her to be discriminatory by Rita or from which discrimination can be inferred. There is thus no basis to find discrimination or to draw any inference of discrimination by the making of the two videos by Rita. 164.Ms Souza also relied on the other matters pleaded in ANOC, namely ignoring Joan, not giving sufficient food to Joan, not allowing Joan to use the washing machines and the installation of the CCTV to monitor Joan. However, in section F5 above, I have already found those complaints have not been established on a balance of probabilities. Therefore, the very basis of those facts not having been established, there is nothing from which inference of discrimination can be drawn. 165.As for the termination of Joan’s employment, I am not satisfied that the Claimant has shown on a balance of probabilities that Joan’s dismissal was in connection with her disability. I am of the view the matters put forward as grounds for dismissal were the reasons for dismissal and not Joan’s disability. 166.On the totality of the evidence before me, I accept Rita’s evidence that she had found Joan’s performance unsatisfactory and the discovery of the taking and posting of photos at the Residence during a working day was the final straw. I am unable to draw the inference that Joan’s disability was also a real cause for her dismissal such that her dismissal was on account of her disability to constitute discrimination. 167.As for the matters that took place in the Residence after termination of Joan’s employment, Rita and Joan no longer being in an employment relationship, s 11 DDO would have no application. In any event, I would not have found that Rita and her family’s treatment of Joan was connected with her disability. The real cause of treating her in that way was they had decided to and was executing their decision to terminate her employment. 168.The claim of discrimination must therefore be dismissed. G2. Whether Rita and/or her agents harassed Joan contrary to ss 2 and 22 of DDO 169.In Ms Souza’s closing submissions, the following matters are relied upon as unwelcome conduct which a reasonable person would having regard to all the circumstances, anticipate to offend, humiliate or intimidate Joan:
170.As for the subjective requirement for harassment that the conduct was unwelcomed to Joan, Ms Souza referred me to Joan’s Statements to the Labour Tribunal. The paragraphs she relied upon were Joan’s feelings upon being served the Termination Letter. She said she felt “shocked, disorientated and felt nervous”. She also said she “worried” about how to pack and carry her luggage as she was very weak and “terrified” because she had nowhere to go. She mentioned she felt “threatened” by three people ordering her to sign the Termination Letter and it was a “very intimidating situation”. Ms Souza further submitted that it was self-evident that the conduct was such one would feel humiliated or intimidated. 171.In so far as the matters relied upon after Joan was notified that her employment was terminated, it is plain that there can be no harassment contrary to s 22(2) of DDO as Joan was no longer employed by Rita. 172.As for the matters after Rita was informed of Joan’s diagnosis up to the termination of Joan’s employment, I have already found that the Claimant has not established on a balance of probabilities the complaints made such as ignoring Joan, installing the CCTV to monitor Joan or not giving her adequate food. It is therefore not established that there was any unwelcome conduct. 173.Even if I am wrong, I am not satisfied on a balance of probabilities that any unwelcome conduct, whether up to the time of termination or even afterwards, was on account of Joan’s disability. As the authorities submitted by Mr Chan demonstrate, simply being mean, making demeaning and abusive remarks or false accusations, or abusive acts, if not connected to the employee’s disability does not constitute harassment: see e.g. Aquino Celestina Valdez, §§106 and 112. 174.Indeed, it is not even pleaded by the Claimant that there was any unwelcome conduct on account of Joan’s disability. 175.The claim for harassment must also be dismissed. G3. Whether there was any breach of the implied term of trust and confidence by Rita 176.As the only basis relied upon for the breach of the implied term of trust and confidence is the breach of DDO, given my findings there was no discriminatory treatment and harassment, I also find that there was no breach of implied term of trust and confidence by Rita. G4. Whether Joan was dismissed contrary to ss 32A and 33(4B) of EO 177.Under s 2(1) of EO, “rest day” means “a continuous period of not less than 24 hours during which an employee is entitled under Part IV to abstain from working for his employer”. 178.On the other hand, “sickness day” is defined under s 2(1) of EO as a day on which an employee is absent from the employee’s work by reason of the employee being unfit for work on account of injury or sickness. 179.It is not disputed that 30 April 2017 was Joan’s rest day. According to Rita’s evidence, which has not been challenged, Joan had left the Residence during the daytime. Nor is there any dispute that on that day, there was no sick leave certificate issued covering that day. Rita confirmed with Joan there was no sick leave certificate covering that day. In the circumstances, it is unreal to suggest that Joan was “absent from the employee’s work by reason of the employee being unfit for work on account of injury or sickness”. 180.The fact that subsequently, Joan obtained a sick leave certificate to cover that day cannot assist either. Mr Chan submitted on the authority of the case of Sin Bik Yin v Carat Jewellery Ltd (Unrep) HCLA 49/2004, 6 May 2005, where only after an employee has been dismissed she obtained a sick leave certificate, the working day cannot be turned into a sickness day (see §§7-14). I agree with the observations of the learned judge in Sin Bik Yin at §12 that it could not have been the intention of the legislature that an employee after reporting to work and only got a sick leave certificate after he was dismissed can then say that he was dismissed on a sickness day. EO protects the employee but also the employer. An employer should know with certainty her legal position. In particular, in this case when the employer had confirmed with the employee that no sick leave certificate was issued covering the day of dismissal, the fact that the employee later obtained a sick leave certificate after the dismissal cannot turn a rest day into a sickness day. 181.Ms Souza sought to distinguish the case of Sin Bik Yin. 182.Firstly, she submitted that in the present case the Respondent knew that Joan had been diagnosed with cancer and serious medical conditions. However, I cannot see how that changes the matter. Rather, because Rita knew that Joan had previously taken sick leave, in the morning on 30 April 2017, she asked Joan whether there was any sick leave covering 30 April 2017. Joan then confirmed that 30 April 2017 was not covered by her sick leave certificates. 183.Secondly, Ms Souza submitted that Joan did not report to work on 30 April 2017 nor was she required to given it was a Sunday. However, the definition of “sickness day” requires not just absence from work but also absence being by reason of the employee being unfit for work on account of injury or sickness. As I have found, Joan was absent from work because it was her day off. 184.Thirdly, Ms Souza relied upon the fact that Rita admitted that she terminated Joan’s employment on 30 April 2017 in order to ensure that she would not obtain a further sick leave certificate. However, it seems to me the subjective reasons or intention of the employer for termination is irrelevant. The relevant question is whether the employee was absent from work by reason of being unfit to work on account of injury or sickness. 185.Fourthly, Ms Souza submitted that the updated medical certificate was issued by the Hospital Authority in relation to the continued treatment of Joan and is appropriate given the seriousness of her health condition. Whilst I cannot question the appropriateness or validity of the subsequent certificate, like in the case of Sin Bik Yin, the issue is that the sick leave certificate was only produced after the dismissal. 186.Lastly, Ms Souza submitted that unlike the case of Sin Bik Yin, it would not be an abuse and in fact in line with the legislative intent for Joan to be afforded the relevant protections under EO when Joan was lawfully and legitimately on a sickness day at the time of termination and should be granted protection under s 33(4B) of EO, her submission smacks of circularity. I have taken the view that 30 April 2017 was not a sickness day. 187.Accordingly, the claim for dismissal contrary to ss 32A and 33(4B) of EO also fails and must be dismissed. G5. What are the appropriate remedies/reliefs to be awarded 188.As the Claimant has failed in all her claims, there is no need to consider the question of relief. H. Disposition and Costs 189.Accordingly, I dismiss the Claimant’s actions. 190.Section 73C(3) of the District Court Ordinance, Cap 336 provides that each party to the proceedings under DDO should bear its own costs unless the court is satisfied that the proceedings were brought maliciously or frivolously; or there are special circumstances which warrant an award of costs. 191.I make a costs order nisi that there be no order as to the costs of both actions. The Claimant’s own costs are to be taxed in accordance with the Legal Aid Regulations. 192.The above costs 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) within 14 days hereof. 193.Lastly, it remains for me to thank counsel for both parties for their helpful assistance.
Ms Denise Souza, instructed by Haldanes, assigned by the Director of Legal Aid, for the Claimant/Plaintiff Mr Chan Yip Hei, instructed by Joseph M K Chan, Solicitors, for the Respondent/Defendant [1] By action number DCEO 13/2019. [2] By action number DCCJ 3408/2020. [3] For convenience, reference to “the Claimant” hereinafter is reference to the Claimant/Plaintiff. [4] For convenience, reference to “the Respondent” hereinafter is reference to the Respondent/Defendant. [5] I believe this should be a typo and should be “s 2”. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
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Further hearings and rulings under DCEO 13/2019