Siu Kai Yuen v. Maria College

DCEO 9/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 9 OF 2004

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BETWEEN

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Coram: Her Honour Judge C.B. Chan in Court

Dates of Trial : 2^nd, 3^rd and 4^th February 2005

Date of Handing down of Judgment : 18^th April 2005

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JUDGMENT

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1.This action is brought under the Disability Discrimination Ordinance, Cap. 487 against the Plaintiff’s former employer for unlawful discrimination against him being a person under disability protected by the DDO.   The Plaintiff claims a Declaration, an apology and damages as pleaded in the Statement of Claim. 

Sections of the DDO relied on by the Plaintiff

2.Section 2 of the DDO provides that disability, in relation to a person, means:-

“(e) the malfunction, malformation or disfigurement of a part of the person’s body.”

3.The New Shorter Oxford English Dictionary explains the word “cancer” as “a malignant tumour or growth of body tissue that tends to spread and may recur if removed; disease in which such a growth occurs.”

4.It cannot be disputed that the Plaintiff, who had rectum cancer is a person with a disability under section 2 of the DDO and is therefore a person protected by the Ordinance.

5.Section 72(1) of the DDO states: “A claim by or on behalf of any person (“the claimant”) that another person (“the respondent”) (a) has committed an act of discrimination against the claimant which is unlawful by virtue of Part III or IV; may be made the subject of civil proceedings in like manner as any other claim in tort.”  Hence, it cannot be disputed that the claim by the Plaintiff in this case of unlawful disability discrimination made under the DDO; it is a claim in tort.

6.The Plaintiff’s claim is based on Section 6 of the DDO which provides that:

“A person discriminates against another person in any circumstances relevant for the purposes of any provision of this Ordinance if –
(a)	on the ground of that other person’s disability he treats him less favourably than he treats or would treat a person without a disability;
(b)	he applies to that other person a requirement or condition which he applies or would apply equally to a person without a disability but –
	(i)	which is such that the proportion of persons with a disability who can comply with it is considerably smaller than the proportion of persons without a disability who can comply with it;
	(ii)	which he cannot show to be justifiable irrespective of the disability or absence of the disability of the person to whom it is applied; and
	(iii)	which is to that person’s detriment because he cannot comply with it.”

7.Section 8 of the DDO provides that:

“A comparison of the cases of persons with or without a disability under section 6 shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

8.Section 11(2)(c) of the DDO provides that:-

“It is unlawful for the employer, in the case of a person with a disability employed by him at an establishment in Hong Kong, to discriminate against that person – (c) by dismissing that person, or subjecting him to any other detriment.”

9.Section 6(a) of the DDO defines what we know as direct discrimination.  A person commits an act of discrimination against another person if he or she treats that other person less favourably on the ground of his or her disability.  In this case, the Plaintiff seeks to prove that he was terminated because of cancer, and he would not have been so terminated but for cancer.  If the Plaintiff succeeds in proving this, disability discrimination is made out.

10.Section 6(b) of the DDO defines what we know as indirect discrimination.  Indirect discrimination occur when a person commits an act of indirect discrimination against another person if he applies a condition or requirement equally to all people, which has a discriminatory effect on persons with disability and a person with disability is subjected to a detriment because he cannot comply with it.

11.The Assistant Legal Advisor of Equal Opportunities Commission acting for the Plaintiff in these proceedings (in short referred to as “Plaintiff’s Legal Representative”) submits that the Plaintiff’s claim of the indirect discrimination is alternative to the claim of direct disability discrimination.  It is the Plaintiff’s case that if the Court is satisfied that direct discrimination is proved, there will be no need for the Court to consider indirect discrimination.

The Evidence

12.The Plaintiff was a competent and diligent teacher employed by the Defendant since 1September 1988.  He taught at the North Point School of the Defendant.  In July 2002, he was diagnosed to have cancer of rectum.

13.On about 9August 2002, the Plaintiff personally called Mr. Leung, the Administration Officer of the North Point School and informed Mr. Leung that he was diagnosed to have cancer of the rectum and would have to undergo an operation on 13 August 2002 in treatment of the disease.

14.The Plaintiff was admitted to Queen Elizabeth Hospital on 12 August 2002.  He had an operation on the following day as scheduled.

15.The Plaintiff duly applied for sick leave and the Defendant paid him sickness allowance in accordance with the Employment Ordinance from 12 August 2002 onwards.  All along, the Plaintiff was expecting to return to work and according to the Plaintiff he had informed Mr. Leung that he could resume duty on 1 November 2002.

16.On late October 2002, the Defendant terminated the Plaintiff’s employment because of his cancer.  It is the Plaintiff’s case that the dismissal amounted to unlawful disability discrimination under the DDO.

17.It is the Plaintiff’s case that the dismissal caused injury to the Plaintiff’s feelings and the Plaintiff suffered damages.

18.The Plaintiff was diagnosed to have cancer of rectum on about 26 July 2002.  His disability is evidenced by various medical reports included in the Bundle of Documents and is not disputed.

19.The disability of the Plaintiff is not in dispute.  But the Defendant denies it had knowledge of the kind of illness suffered by the Plaintiff.

20.The Defendant employed a supply Teacher Mr. Leung Man To, a geography teacher, on the 24^th August 2002 to work for the whole academic year, to replace the Plaintiff and to take up the Plaintiff’s duties.   The Defendant’s witness the Principal of the Defendant stated that if the leave taken by the teacher were short, they would find a substitute teacher to take his place.   Were the leave of absence long, they would employ a supply teacher employed on a contract of a year to substitute for him. 

The Defence Case

21.The Defendant denies the claim and pleads that on the facts, the Plaintiff was not discriminated against within the terms of the DDO, and that the Defendant is accordingly not liable.

22.The disability relied on by the Plaintiff is carcinoma of the rectum.  The Defendant admits this to be a disability.  It is however denied that the Defendant was aware of the nature of the illness until 25^th October when the medical certificate at Tab 25 page 93 of the Bundle of documents (BD-D) was sent under cover of the leave application at Tab 23 page 78 of BD-D by the Plaintiff to the Defendant.

23.It is the Defendant’s case that whether or not the Defendant knew of the nature of the illness on the 21^st October 2002 the Plaintiff was not being discriminated against on the grounds of his illness, particularly in view of Section 8 of the DDO.

The Issues

The 1^st Issue

25.The evidence of the Plaintiff is that he telephoned Mr. Leung who was the administrative officer of the North Point Branch of the Defendant on about 9 August 2002.   In the telephone conversation he informed Mr. Leung that he was diagnosed to suffer from rectum cancer.   He also requested him to make arrangements because the month of August was the period of enrolment of students from mid August to near the end of August.   He has been assigned duties concerning enrolment for two or three days.   He informed Mr. Leung that the doctor had arranged for him to undergo an operation to cut away the cancerous rectum.  He did not telephone the Principal to inform her of this because the normal practice in applying for leave is to inform the administrative officer.   

26.After the operation whilst he was in hospital, Mr. Leung and a teacher Mr. Tung came to visit him in hospital.   The Plaintiff said he showed them the wound.  They comforted him and asked him not to worry but to take a rest.   Mr. Leung also advised him to get a formal medical certificate and report.    During their visit, the Plaintiff told them the nature of his illness.  

27.On the 22^nd August, he was issued a medical certificate, at page 90 of BD-D.   He sent all his medical certificates to the Defendant by registered mail to the Principal at the Kowloon City branch of the Defendant.   Subsequently, he asked his younger brother to deliver a sick leave application to the Principal.    He sent all his medical sick leave certificates to the school Principal by registered post.  

28.On or about 18October 2002 he received a document from his doctor dated 18 October 2002 at page 73 Tab 21 enclosing a Certificate at page 72 which state that the Plaintiff is currently under convalescence recovering from surgical illness.  It stated that he may return to his original post after full recovery.   

29.The Plaintiff called a witness, Mr. Fu Siu Kit who stated that he was present when Mr. Leung telephoned the Principal to tell her that the Plaintiff was suffering from cancer.   It was on a Monday after Mr. Leung visited the Plaintiff in hospital.   He knew it was the Principal on the other side because Mr. Leung informed him.   It was his practice to report everything to the Principal.  

30.On the Defendant’s part, the Principal Ms. Li Fung King gave evidence.   She denied that she had knowledge that the Plaintiff had cancer.   She only knew he was sick.   She stated that in August, Mr. Leung, the administrative officer of the North Point branch told her that he had received a telephone call from the family of the Plaintiff.  He told her that the Plaintiff was in hospital undergoing surgery.  She had planned for the Plaintiff to come back for work in August but the Plaintiff was unable to do so.    Mr. Leung did not mention the nature of the Plaintiff’s illness.   

31.Towards the end of August, Mr. Leung informed her that the Plaintiff needed to take leave for a longer period of time.  The Plaintiff allegedly did not state that nature of his illness.   He did not state when he could return to work.   Because the 1^st September is the start of the new school year and the Plaintiff did not say when he could return to the school, she told the School Supervisor that the Plaintiff needed to take longer leave.   Because of the fact that they must have a teacher by the 1^st September, they employed Mr. Leung Man To to replace the Plaintiff.   Mr. Leung Man To’s contract was for one academic year. 

32.On about 1^st October, the School Supervisor informed her to find out when the Plaintiff could return to work.   After a few days, Mr. Leung replied that the Plaintiff could not give an exact date when he could return to work in the School.   She stated that in all the sick leave certificates and medical report given to the school there was no mention of the nature of the illness of the Plaintiff.   She stated that she knew the Plaintiff had surgery and that he was sick and had an illness.   When she was asked whether she was eager to know what was the nature of the Plaintiff’s illness, she did not reply directly but said that she did not ask.   She stated that no other staff had taken as long a period of leave as the Plaintiff.   She said that it did not occur to her to ask what illness the Plaintiff was suffering from.   

33.In my view it is unbelievable that Ms. Li as the school Principal did not ask the nature of the Plaintiff’s illness when the Plaintiff had taken leave of absence and she had to plan ahead for the school and its needs.    Knowledge of the diagnosis of the Plaintiff’s illness and the purpose of the surgery and its prognosis would have helped her to assess whether the leave of the Plaintiff is likely to be long or short.     In my view, it is highly unlikely that she as a responsible Principal is totally unconcerned about the nature of the Plaintiff’s illness as he has been working for the Defendant since 1988 and was a good teacher.  

34.I therefore do not believe in her evidence in relation to his issue.  I find that she had been informed that the Plaintiff had suffered from rectum cancer and the operation was to remove the cancer in the rectum. 

The 2^nd Issue

35.This issue relates to direct discrimination arising from the Plaintiff’s disability under section 6(a) of the DDO.  The Plaintiff’s Legal Representative submits that it is irrelevant whether the Defendant knew the nature and extent of the Plaintiff’s illness.  It is sufficient that the Defendant knew the Plaintiff had some kind of disability or a manifestation of a disability.  She refers to the authorities X v. McHugh, Auditor-General for the State of Tasmania (1994) EOC 92-523, London Borough of Hammersmith & Fulham v. Farnsworth [2000] IRLR 691 in support.  In my view this must be so.  

36.The Plaintiff’s Legal Representative submits that the correct question to ask is: “Whether the Defendant would be dismissed but for his disability?”  The Plaintiff relies on the “but for” principle adopted by the CFA in Secretary for Justice and Others v. Chan Wah and Others [2000] HKCFAR 459 at 476.  The material part of the decision is that which sets out the judgment from R v. Birmingham City Council ex p. Equal Opportunities Commission [1989] 1 AC 1155:

“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.”

37.I agree that the question to be asked is that submitted by the Plaintiff’s Legal Representative.  

38.In considering this issue it is clear that section 6 of the DDO must be read together with Section 8, which clarifies the comparison process which must be carried out under section 6.  Section 8 provides:

“a comparison of the cases of persons with or without a disability under section 6 shall be such that the relevant circumstances in the one case are the same, or not materially different in the other.”

39.The Defendant’s Counsel submits that it appears to be undisputed on the facts that the Defendant took the absence of teachers generally very seriously, on the ground that prolonged absence has an adverse effect on the education of the pupils.  This attitude towards teachers in general is evidenced by:

(i)	the standard form contract issued to teachers.  The Plaintiff’s contract i.e. at Tab 1 pages 25-26 BD-D and that of Leung Man To at Tab 16 page 54 of BD-D Clauses 1 and 2 of the Absence and Substitution provisions in Section B at Tab 1 at page 26 of BD-D were clearly designed to discourage absence for whatever reason.  It is not only directed towards teachers who are on sick leave.
(ii)	the evidence of Fu Siu Kit, statement para. 10, that a teacher who had taken too much leave was to be replaced (this was in fact another sickness case;)
(iii)	the evidence of Li Fung King that the school authority places heavy emphasis on the length of absence of a teacher.  She refers to this in her witness statement, at paragraph 4, in page 56 of the Bundle of Pleadings (BD-P).  She elaborated on this in oral evidence-in-chief, saying that the reason for this policy is to safeguard the interests of the students, whose studies would be adversely affected by changes in teachers.

40.Since the purpose of the school’s policy was to safeguard the interests of the pupils from the effects of prolonged absences by teachers, it is clear that the school was concerned with absences by teachers for any reason, whether it is for sickness or absence for other reason.  Thus it was submitted by the Defendant’s Counsel that the policy was not directed at sick teachers, but against absent teachers.  An absent teacher would not have his contract terminated on the grounds of his disability, but on the grounds of his absence.

41.Clauses 1 and 2 of Section B of the Conditions of Employment for Teachers at page 26 of Tab1 of BD-D state:

“	1.	Teachers can be absent from service only if they have obtained permission from the College which shall arrange for a substitute teacher.  The substitution charge according to the prescribed scale for each class ($170) will be provided by the teacher so absent.  The substituting teacher will be remunerated in accordance with the same scale.
	2.	Teacher having taken leave of whatever reasons for more than 10% of his/her total number of classes in the month of leave shall be considered having acted in breach of the fundamental term of his/her contract of service with the College.”

42.The Defendant’s Counsel illustrates this by the application of the necessary comparison pursuant to Section 8.  In the present case it is necessary to compare the Plaintiff, a person with a disability who was absent from about early August until 21^st October and still could not return to work, with a person without a disability who was absent for the same period.

43.The Defendant’s Counsel submits that when this comparison is carried out pursuant to the requirements of Sections 6(a) and 8, it is obvious that the Plaintiff was not being discriminated against on the ground of his disability.  Clearly a person who was absent for a similar period but did not have a disability would also have his or her contract terminated.

44.It is for this reason that the Defendant’s Counsel submits that there is no direct discrimination of the Plaintiff for his disability.   

45.The reasoning of the Plaintiff’s Legal Representative is that from the facts, an irresistible inference could be drawn that the Plaintiff was dismissed as soon as the Defendant discovered that he had cancer.   This is because the Defendant employed Mr. Leung Man To for the whole academic year.   This shows that the Defendant had the intention at that point to dismiss the Plaintiff.   The Plaintiff’s Legal Representative submitted that the Defendant did not dismiss the Plaintiff at the time because it was uncertain whether to do so would contravene the Employment Ordinance.   Once the Defendant came to the conclusion that the Plaintiff’s contract of employment was not a continuous contract of employment in October, the Defendant dismissed the Plaintiff.  

46.The Plaintiff’s Legal Representative submitted that if the Court is satisfied that the Defendant decided to dismiss the Plaintiff as soon as it was aware that he had cancer, and that a teacher without the Plaintiff’s disability would not have been so dismissed, direct discrimination is established, on the basis that he was being treated less favourably on the ground of his disability.  The correct comparator is simply a teacher who did not have the Plaintiff’s disability.

47.Even if the Court accepts the Defendant’s argument that the Plaintiff was dismissed because of his inability to return to work not because of his disability, the Plaintiff submits that the comparison should be made between the Plaintiff and another teacher who is not able to return to work but who does not have the Plaintiff’s disability.

48.The Plaintiff’s Legal Representative presented a second limb of her argument and submitted that Ms. Li said that no other teacher has taken leave for a period as long as the Plaintiff has taken, in such circumstances, she argues that the court may choose a hypothetical comparator.  The evidence from Ms. Li confirmed that the school would not have dismissed a teacher who is on maternity leave, or is required to take leave to give evidence in court or to perform jury duty.  In such circumstances, if the Court accepts that the Plaintiff was dismissed because he was unable to attend to work, the dismissal received by the Plaintiff was less favourable when compared with another teacher who did not have a disability and was required to take leave for maternity or to give evidence.  This is because they would be allowed to take leave and would not be dismissed.  The Plaintiff’s Legal Representative contends that on that basis, the Court should have no difficulty finding that the Plaintiff would not have been dismissed but for his disability and that he was subjected to a less favourable treatment on the ground of his disability.

49.Having heard argument of the Plaintiff’s Legal Representative, I find the 2^nd limb of her argument in support of direct discrimination more convincing and I am not able to accept the first limb of her argument for direct discrimination.   The reason is, I am of the view that it is not easy to draw the inference that the Defendant had come to the decision to dismiss the Plaintiff as soon as the Defendant discovered that the Plaintiff had cancer at the time the Defendant employed Mr. Leung Man To.   

50.Although no teacher had ever applied for as long a period of leave as the Plaintiff, Ms. Li’s evidence shows that if a teacher applied for maternity leave or for jury duty, that teacher would not be dismissed.  As regard jury duty the length of such leave depended on the length of the trial and in some cases trials could last long.   As far as trials are concerned it is not easy to estimate the length of a long and complicated trial.   It seems on the above basis, the Plaintiff has established direct discrimination on the basis of his disability.  

51.The Plaintiff’s Legal Representative submitted further that the only defence that the Defendant can rely on in respect of direct disability discrimination is section 12(2) of the DDO.  The Defendant has not pleaded section 12(2) of the DDO in its Defence, nor has it at any time in these proceedings sought to argue that the Plaintiff, because of his disability, would be unable to carry out the inherent requirements of his job, or that, in order to perform the inherent requirements of the job, the Defendant has unjustifiable hardship in order to provide him with reasonable accommodation to do so.  It is incumbent upon the Defendant, in relying on this defence, to show what the inherent requirements of the job of a geography school teacher are, which one (or more) of these inherent requirements the Plaintiff was said to be unable to perform, or what reasonable accommodation the Defendant could not provide.

52.I therefore find that the Plaintiff has established direct discrimination under section 6(a) of the DDO.

The 3^rd Issue

53.In respect of this issue, the only argument advanced by the Defendant’s Counsel is that the principal reason why there was no discrimination under Section 6(b) is because the relevant requirement or condition that is, the contractual terms in relation to absence in paragraphs 1 and 2 of Section B of the Conditions of Employment for Teachers were justifiable under S6(b)(ii) of DDO.

54.He submits that these terms were justifiable because:

(i)	the job of a teacher is a special job.  It is wholly different from a factory or office job because the teacher is involved in the education of children whose education and future prospects can be damaged if there is disruption or lack of continuity in the teaching process.  The Plaintiff himself agreed with this proposition, in general terms, when cross-examined.
(ii)	teachers are professional persons.  High standards are required of professional persons generally because they are entrusted with the interests of their clients (or students in the case of teachers) who in return must rely on the skill, integrity and responsibility of the professional.
(iii)	The Plaintiff and his colleagues willingly entered into contracts containing these terms, in the Plaintiff’s case on many occasions over many years.  As teachers it can be assumed that they were intelligent and so understood what they were committing themselves to.
(iv)	In considering to what extent teachers should be entitled to leave of absence, a balance must be struck between the interest of the teacher and interest of his pupils.  It is appropriate that the balance should be in the pupils’ favour because:
	(a)	they are more numerous;
	(b)	they are more vulnerable;
	(c)	the responsibility is owed more by teacher to pupil than vice versa.
(v)	the fact that the terms might in some cases operate harshly on a teacher does not detract from their overall purpose, which is the protection of the pupils’ interests and the advancement of their education and not the oppression of teachers.
(vi)	The Plaintiff’s Legal Representative submits that the Defendant has satisfied the criteria set out in Board of Governors of St. Matthias Church of England School v. Crizzle [1993] IRLR 472 at para. 25.

55.When considering these arguments it is necessary to consider the content of paragraphs 1 and 2 of Section B of the Conditions of Employment for Teachers at page 26 of Tab 1 of BD-D (“the Absence and Substitution Terms”).   In particular paragraph 2 thereof stipulate that:

“2.  Teacher having taken leave of whatever reason for more than 10% of his/her total number of classes in the month of leave shall be considered having acted in breach of the fundamental term of his/her contract of service with the College.” 

56.This term effectively would give the College a right to dismiss teachers who have to take sick leave beyond 10% of his/her total number of classes in the month of leave owing to disability arising from illness.   It is clear that teachers who are disabled from work because of illness do not have a choice but have to take leave of absence from teaching.   It is clear that the proportion of persons with a disability who can comply with this condition is considerably smaller than the proportion of persons without a disability who can comply with it.   As submitted in Briggs v. North Eastern Education and Library Board [1990] IRLR 181, in para 33 in the judgment the Northern Ireland Court of Appeal held that the Court can take into account their own knowledge and experience and it is undesirable that elaborate statistical evidence should be required before a case can be proved.  

57.The Plaintiff’s Legal Representative referred to London Underground Ltd. v. Edwards (No. 2), even when there is only one person who is unable to comply with the condition, unlawful indirect discrimination can still be established if the court is satisfied that the condition in question has disparate impact between people with a particular disability and people without that disability.

58.I agree with the Plaintiff’s Legal Representative that it is common sense that people who are seriously ill cannot attend work.  The requirement to attend work can clearly be an element of indirect discrimination.

59.As to whether the requirement related to attendance is justifiable, the Board of Governors of St. Matthias Church of England School v. Crizzle [1993] IRLR 472, set out the factors that the Court should consider as follows:

'	(1)	Whether the objective was legitimate?
	(2)	Whether the means used to achieve the objective are reasonable?
	(3)	Whether the conditions are justified when balanced on the principles of proportionality between the discriminatory effect upon the applicant’s racial group and the reasonable needs of those applying the condition?"

60.I consider whether the objective to ensure that there should be little disruption to the teaching program and there should be continuity in the process is legitimate.   Even were the objective legitimate, the means used to achieve the objective in the Absence and Substitution clauses appear to me to be unreasonable as they would cause those who have to take leave for reasons beyond their control particularly those who have to take leave as a result of disability, to lose their employment.     

61.In relation to the 3^rd factor that has to be considered, it seems to me that the reasonable needs of the pupils could easily be satisfied by the employment of a substitute teacher as in this case.   Ms. Li gave evidence that if a teacher’s absence is temporary, his classes will be filled up by a supply teacher.  If his absence is long, then a substitute teacher is needed to replace him.  Ms. Li gave evidence that as early as the 24^th August, she employed Mr. Leung Man To to be a substitute to teach the Plaintiff’s classes.   Mr. Leung Man To was employed for an academic year on a probation period of 3 months.  Ms. Li stated that were the Plaintiff able to return to work within 3 months after the start of term in the beginning of September, the Defendant would dismiss Mr. Leung.    At the time when the Defendant dismissed the Plaintiff, the Plaintiff was expecting to return to work.   The three months period of probation of Mr. Leung Man To was not due to end until 30^th November.    There is no evidence that there would be great disruption to the students were Mr. Leung to resume duty at the end of his sick leave period.   The Defendant had not waited to obtain more information on the Plaintiff’s diability, including the seriousness of his illness and what accommodation she would require to carry out his job when he could return to work and the extent of his ability to carry out his original duties.   

62.Under cross-examination by the Plaintiff’s Legal Representative, Ms. Li said that the school had not considered other alternatives before dismissing the Plaintiff.  The Defendant simply relied on the conditions imposed in the Conditions of Employment and dismissed the Plaintiff, without giving any accommodation to him.

63.I agree with the Plaintiff’s Legal Representative that the conditions are not justified when balanced on the principles of proportionality between the discriminatory effect upon the Plaintiff’s group and the reasonable needs of those applying the condition.  

64.I find therefore that the Defendant has not shown the Absence and Substitution Terms to be justifiable.   The Plaintiff has established indirect discrimination against him as a person with a disability.  

The 4^th Issue

65.The Plaintiff’s Legal Representative submits that under cross-examination, Ms. Li said that if any teacher has committed breach of contract, the Defendant would issue a warning letter.  Ms. Li said the Defendant had not issued such a letter to the Plaintiff before he was dismissed.  Ms. Li also said that the ISO2002 requires the School to have proper documentation.  I agree with the submission of the Plaintiff’s Legal Representative that the fact that there is no warning letter is inconsistent with the Defendant’s case that there was a fundamental breach.

66.Further, under sections 41 and 83 of the DDO, the Absence and Substitution Terms are void and unenforceable.  

67.Reliance on contract by the Defendant is not a defence to claim of unlawful discrimination.  Non-compliance of contract by the Plaintiff is also not a defence.

The 4th Issue

68.The Plaintiff’s case is brought in tort and not in contract.   The Plaintiff claims damages being loss of income in the sum of HK$240,000 for the period from 1 September 2002 to 31 December 2003.   The Plaintiff’s case is that the Defendant had paid him sickness allowance up to 30 September 2002.  However, in para. 32 of his witness statement he stated that the sickness allowance paid to him in the sum of HK$21,000 had been deducted from his long service payment.  In effect the Plaintiff was not paid any sickness allowance.   There are two limbs of this claim for loss of income, firstly, for sickness allowance during his sick leave period and secondly for loss of income arising from not being able to resume work because of the dismissal.  

69.I shall first address the time when the Plaintiff would have been able to resume work.  

70.It is the Plaintiff’s evidence that he had requested to return to work from 1 November 2002 and he would be physically capable of carrying on the job as a teacher until end of December 2003.  The Plaintiff should be able to earn a monthly income at HK$15,000 for this period had the Defendant not discriminated against him.

71.From the evidence produced by the Plaintiff it would appear that the Plaintiff was too optimistic in stating that he would have been able to return to work from the 1^st November 2002, even though he may have wanted to do so.   He was still receiving radiation treatment until the end of November 2002 (see page 80 of the BD-D).  He was also receiving chemotherapy in November, December, some days in January, in February, March and April 2003.   He received a sick leave certificate to cover the period until 23^rd November 2002.  No doubt the Plaintiff was eager to return to work and would have made an attempt to do so in the beginning of November 2002.   To be realistic it would have been difficult for the Plaintiff to return to work until the end of November 2002 and thereafter he was still receiving intermittent treatment for several days each month as can be seen in the medical records at pages 80 to 89 of BD-D.  The treatment would have disrupted his working routine up to the beginning of April 2003.   He stated that he could have arranged to have the treatment at the end of the working day and go to work in the morning (see paragraph 30 of the Plaintiff’s witness statement).  This may well have been the case.  This may well be the case but as there is no medical evidence in support of this I shall take a cautions approach.  The Plaintiff was active in May 2003.  It was then when he applied for help to the Equal Opportunities Commission to seek conciliation with the Defendant and at the failure of this to file this claim.    This supports his contention that he was fit and able to work at least from then if not earlier.   In September 2003 he was well able to enrol in the Diploma in Finance course with the HKU School of Professional and Continuing Education (see official receipts at pages 338-9 of BD-D).   He stated in evidence that he did the courses until the end of December when he suffered a relapse of the illness.  

72.Having regard to the evidence aforesaid, to be fair to the Plaintiff and the Defendant he would at least have been able to work for 8 months were it not for the dismissal namely from May until December 2003.    The Defendant’s Counsel stated that the Plaintiff’s contract of employment expired on the 31^st July 2003 and therefore there was no obligation for the Defendant to re-employ the Plaintiff beyond 31^st July 2003.    As the Plaintiff enrolled in the course at Hong Kong University on the 1^st September 2003 aforesaid, in all probability he was in good health at the end of 31^st July 2003 and in all probability is likely to be re-employed by the Defendant as he has worked for the Defendant since 1^st September 1988 and his performance at work was good.   Further, it would be presumed that the Defendant would not discriminate against the Plaintiff on the basis of his having suffered from cancer of the rectum in its decision as to whether to re-employ him for the next academic year.    Having regard to the fact that this action is based on tort and not contract, and for the reasons aforesaid, I grant the claim of the Plaintiff for loss of income for the period that the Plaintiff would have been able to resume work from 1^st May 2003 to 31^st December 2003.   I take the 31^st December as the last date of the period when the Plaintiff could claim for loss of income.    The reason is, the Plaintiff stated that he was able to continue his course of studies at Hong Kong University until the end of December 2003 when he suffered a relapse (see paragraph 34 of the Plaintiff’s witness statement).   That period is a period of 8 months.   I grant the Plaintiff loss of income of 8 months at a salary of $15,000 per month.   This comes to $120,000.00.   

73.The Plaintiff claims for sickness allowance from 1^st October 2002 for the period when he was not able to return to work.   In relation to this, there is some reference by the Defendant that the Plaintiff was not in continuous employment because he did not teach more than 18 hours per week.    By the time of the Plaintiff’s dismissal, the Plaintiff was employed on his contract dated 15 March 2002.   In this contract, it is stated that he would work 30 periods per week.   The evidence shows that each period has 35 minutes.    30 periods multiplied by 35 minutes comes to 17.5 hours.    However, as we all know, a teacher’s working hours are beyond the actual number of hours in the classroom.   Going from one class to another would take at least a few minutes between classes.   Such time no doubt would be time spent in the school.   It is common knowledge that a teacher’s job includes lesson preparation before each class.   Paragraph 10 of the Conditions of Employment For Teachers at page 26 of BD-D state that, “Teachers shall participate in and prepare in advance notes to students.”   Such time and time to mark papers must be part of the working time of a teacher.    In the case where the Conditions of Employment require the teachers to prepare lesson notes in advance for students, such time spent in the preparation of lesson notes must be time of work of the teacher.    In my view, it is entirely debatable that the hours of the Plaintiff’s work each week are less than 18 hours per week.   In view of the aforesaid, I find that the Defendant could not substantiate that the  Plaintiff’s contract of employment as at the date of his dismissal was not a continuous contract of employment.   The evidence shows that the contract of employment of the Plaintiff dated 22^nd March 2002 on the balance of probability is a continuous contract of employment.     

74.In the closing submission of the Defendant’s Counsel that there is no dispute that the Plaintiff would have been entitled to sickness allowance were the Defendant found liable.   He submitted that the damages due to the Plaintiff would be 4/5ths of the Plaintiff’s monthly salary from October 2002 to July 2003.    The Defendant’s Counsel contended that the Defendant was not liable to pay damages beyond 31^st July 2003.    The issue as regards the period in which the Defendant has to pay damages for loss of income to the Plaintiff has been addressed above.

75.On the basis that the contract of employment is a continuous contract of employment, sections 33 and 35 of the Employment Ordinance applies to this contract.   Section 33(2) of the Employment Ordinance states that the maximum number of paid sickness days that can be accumulated is 120 days.    The Plaintiff would only be entitled to 4/5 of 120 days of sickness pay.   The period from 1^st September2002 to 30^th April 2003 exceeded 120 days.    As the Defendant had deducted the sickness pay received by the Plaintiff when computing the Plaintiff’s long service pay paid to the Plaintiff, the effect of this is that the Plaintiff has not received any sickness pay.     

76.I therefore assess compensation for loss of income in respect of sickness pay at 4/5 x 120/30 x $15,000 = $48,000.   

77.In relation to the head of damages for injury to feelings, in the case of Vento v. Chief Constable of W. Yorkshire Police [2002] EWCA Cir. 1871 para 681.2, it was observed that three broad bands of compensation for injury to feelings could be identified.  These are:

1.	The top band should normally be between 15,000 to 25,000 pounds.   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 pounds.
2.	The middle band of between 5,000 pounds and 15,000 pounds should be used for serious cases, which do not merit an award in the highest band.
3.	Awards of between 500 pounds and 5,000 pounds are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. . .

78.The Defendant’s Counsel submits that the Plaintiff’s contract was not terminated when he first became ill.  The Defendant waited until 21^st October 2003.  Throughout the period from early August the Defendant had no indication as to when or whether the Plaintiff would return to work.  Not only did the Defendant comply with its statutory obligations by paying the Plaintiff sickness pay for September, and HK$108,000 as a long service payment, but it also paid the discretionary bonus for August 2002.

79.The Defendant’s Counsel submits that the Defendant did attempt to conciliate with the Plaintiff.  The attempts were however unsuccessful.   The Defendant’s Counsel submitted that the damages for injury to feelings should be at the lowest band of between the Hong Kong Dollar equivalent of 500 to 5000 pounds.   It is noted that despite the conciliatory process, the Defendant has still not put into place an equal opportunities policy.   The Defendant did not pay sickness pay to the Plaintiff as such sickness pay as they rendered were deducted from the Plaintiff’s long service pay (see paragraph 32 of the Plaintiff’s witness statement).   From the Plaintiff’s perspective the Defendant denied knowledge of his illness and maintained that the contract was void because he had failed to perform the contract on 1^st September 2002.   There is no dispute that the Plaintiff had been a loyal and dedicated teacher and the Plaintiff stated that he felt betrayed.

80.I accept the contention of the Defendant’s Counsel that damages should be at the lowest band aforesaid.  On the basis of all the factors referred to me by the Defendant’s Counsel aforesaid, and the facts of this case, I find that the damages for injury to feelings should be in the sum of HK$30,000.  

81.The Plaintiff also applies for a declaration pursuant to secton 72(4)(a) of the Ordinance.   I grant this application and make a declaration that the Defendant has committed an unlawful act of disability discrimination by dismissing the Plaintiff.   

82.In relation to the application for an apology, it is obvious from the submission of the Defendant’s Counsel that this is not a case where the Defendant is willing to offer an apology.   In such cases, Li CJ in Ma Bik Yung and Ko Chuen state in para 52 of the judgment the following:

“Before an order for an apology could be made against an unwilling defendant, s.72(4)(b) requires the court to be satisfied that an apology is a reasonable act for the defendant to perform in the circumstances of the case in question.   The requirement of “reasonable” in the provision may not necessarily lead to the conclusion that an order for an apology can never be made against an unwilling defendant.    With an unwilling defendant, it may well be that an apology, which will be an insincere one, would usually not be a reasonable act for him to perform.   In this context, it must be borne in mind that there are many other remedies at the court’s disposal which could be considered.  But there may be rare cases where the court could be satisfied that an apology, albeit insincere, would be a reasonable act for the defendant to perform.  Further, in these rare cases, enforcement could not be said to be futile or disproportionate and contrary to the interests of the administration of justice.  The circumstances in these rare cases, including the degree of gravity of the defendant’s unlawful conduct as well as the nature and extent of the plaintiff’s loss and damage, would have to be exceptional.”     

83.Having considered the fact that the Defendant was not contrite and repentant and had never indicated that it was, an apology would therefore be an empty gesture.   I am of the view that this is not such a rare case where an apology should be extended in the circumstances aforesaid.    By this judgment and decision of the Court, the discrimination against the Plaintiff that had caused the distress to the Plaintiff has been condemned and the conduct of the Defendant has been outlawed.   The community has made clear that such conduct is not to be tolerated in our society.   

84.The damages and the Declaration made by this Court go some way to alleviate the injury to feelings caused to the Plaintiff.  

85.Judgment for the Plaintiff against the Defendant in the sum of $198,000.00 together with interest thereon from date of Writ to date of judgment at judgment rate and thereafter until payment at judgment rate.   I make a Declaration pursuant to section 72(4)(a) of the Ordinance that the Defendant has committed an unlawful act of disability discrimination by dismissing the Plaintiff.  I make no order for costs as it is a claim brought under the Disability Discrimination Ordinance.

Representation:

Miss Wendy W.Y. Lee, assistant Legal Adviser of Equal Opportunities Commission for the Plaintiff.

Mr. A. Bell instructed by Messrs. Tang, Wong & Cheung for the Defendant.