Aquino Celestina Valdez v. So Mei Ngor Betty

DCEO 3/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 3 OF 2004

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BETWEEN

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Before:  His Honour Judge To in Court

Dates of Hearing:  27, 30-31 August 2004; 13-15, 23 June 2005 and 22 July 2005

Date of Judgment:  12 September 2005

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J U D G M E N T

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Introduction

Background

1.This is an action brought under the provisions of the Disability Discrimination Ordinance, Cap 487 by a Filipino domestic helper, Ms Aquino, against her former employer, Ms So.  Ms Aquino’s claim is for damages for discrimination.  She was represented by Mr MacKenzie-Ross, acting pro bono, on the instruction of Messrs Massie & Clement.  Ms So was not legally represented.

2.Ms Aquino started her employment with Ms So on 17 October 2003.  Ms So issued two warning letters to Ms Aquino on 11 November and 2 December 2003.  On 7 December 2003, Ms Aquino started writing a letter to the Labour Department to complain about ill-treatment and torture by Ms So and her family.  She put in additional complaints day after day in that letter which was eventually sent to the Labour Department on 17 December 2003.  On 24 December 2003, she recorded a conversation between herself and Ms So while Ms So scolded and abused her in the kitchen.  On 26 December 2003, Ms So issued Ms Aquino a third warning letter and dismissed her summarily.  Ms Aquino was not paid any wages or given a return air ticket to the Philippines.  She complained to the Philippines Consulate and also called the police.  Upon the advice of the police officers who arrived in response to her call, Ms Aquino left and made a claim in the Labour Department.  She claimed for arrears of wages, wages in lieu of notice and travelling allowance totalling $7,908 and a return air ticket to the Philippines.  At a conciliation meeting held in the Labour Department on 31 January 2004, attended by Ms Aquino and Ms So’s husband, Mr Leung, Mr Leung paid Ms Aquino $3,500 in a full and final settlement of her claim.  Then in early March 2004, Ms Aquino issued the present proceedings claiming damages for discrimination.

Dramatis Personae

3.Ms Aquino is a 44 years old Filipino domestic helper.  She has four children, aged 16, 18, 20 and 22.  She has a congenital deformity in her right hand in that her middle three fingers are partially fused together and are incomplete.  However, that hand is functional.  She first came to Hong Kong in 2000 and completed a two year contract of employment with a Mr Ng before she entered into a contract of employment with Ms So.  Since her dismissal, she has been unemployed.  She has been living in accommodation at the monthly rental of $1,400 provided by a friend who is a leader of her church.  That friend also lent her about $500 a month for her daily expenses. 

4.Ms So is a consultant in a governmental organisation earning $35,000 a month.  Her husband, Mr Leung, is a director in an American telecommunication business, earning about $116,000 a month.  He has an option in the company’s shares which he estimated to be worth $2 million.  He plays golf.  Both Ms So and Mr Leung are well educated and speak and write fluent English and Chinese.  They live in a flat in Greenland Garden which they bought about ten years ago.  They have two daughters, aged fourteen and ten at the material time.  Both daughters receive lessons in ballet and piano.  The family keeps a small dog as a pet.  It is a well to do, educated and apparently decent family.  Ms So had employed two other Filipino domestic helpers in the last ten years, but they had returned to the Philippines to get married or to give birth to their children.

The Plaintiff’s case

5.Ms Aquino’s case is that during the first two days of her employment, the family did not notice her deformity and treated her well.  However, the attitude of the family changed drastically on the third day, i.e. 19 October 2003 when they discovered her deformity.  Ms So attempted to persuade her to resign but she refused as she had to support her family.  Ms So demanded her to produce a medical certificate to certify her deformity was not connected with any disease, but Ms Aquino did not have such a certificate.  Since then she was subjected to escalating abuses and ill-treatment with the intention of forcing her to resign.  These abuses and ill-treatment included shouting at her with obscene language, falsely accusing her of being a disease person, accusing her of theft, threatening to kill her, physically assaulting her and imposing unlawful fines for alleged imperfections in her work and for returning late on her rest days.  Ms So also made false accusations about her mistakes and incompetence at work and forced her to sign warning letters under threat that unless she signed she would be dismissed.  These warning letters were fabricated to support a case of summary dismissal.  The course of conduct was directed at Ms Aquino for the purpose of forcing her to leave her job.  Ms Aquino claimed that the real reason for her dismissal was her disability and that constituted an unlawful act of discrimination by Ms So. 

6.Ms Aquino’s pleaded case and damages claimed are for discrimination.  It appeared that the course of conduct alleged is evidence of discriminatory conduct which ended up with the ultimate dismissal.  No harassment has been pleaded and no damages for harassment have been claimed.  However, in his final submission, Mr MacKenzie-Ross sought to rely on the course of conduct as harassment and sought to claim damages for harassment as well.  He asked for leave to amend the statement of claim to that effect.  I deferred ruling on the application and shall consider that application should it become necessary.

7.Ms So denied the allegations.  Her defence is that she had no knowledge of Ms Aquino’s deformity and that Ms Aquino was not dismissed because of her disability but because of her unsatisfactory performance.  She relied on the three warning letters acknowledged by Ms Aquino as evidence of her unsatisfactory performance.

The  Law 

Discrimination

8.“Discrimination” is defined to mean any discrimination under sections 6 and 7 of the Disability Discrimination Ordinance, Cap 487.  The discrimination relied on by Ms Aquino is that under section 6(a) and (b), namely discrimination against a person with disability.  The section provides:

“	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; or
	(c)	on the ground of the disability of an associate of that other person he treats him less favourably than he treats or would treat a person without such a disability.”

9.Section 6(a) provides for direct discrimination.  To prove discrimination in employment, the disabled employee must (1) identify the alleged discriminatory treatment complained of; (2) prove that the treatment is connected to the impugned ground of disability and (3) show that it is less favourable than that received by another real person or a notional person without a disability or the same disability.  In the instant case, as the Respondent employed only one employee, it becomes necessary to compare the treatment which Ms Aquino received with the treatment which would be received by a notional person.  In identifying this notional comparator, the court must not imbue on that notional person with all the characteristics of the claimant under a disability for that would fatally frustrate the purpose of the Ordinance if the matters which it expressly identifies as constituting unacceptable bases for differential treatment could be seized upon and render the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Ordinance.

10.Section 6(b) provides for indirect discrimination.  The discrimination referred to in section 6(b) is the application to the disabled employee a requirement which an employer applies to a person without disability, if three other conditions are satisfied.  Firstly, the employee has to show not only that it is difficult for persons with a disability to comply with the requirement, but the requirement 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.  Secondly, the employer cannot show it is justifiable to apply that requirement to his employee irrespective of the disability or the absence of the disability.  Thirdly, the application of that requirement is detrimental to the employee in that he cannot actually comply with it.  Thus, it is not the law that an employer must give allowance to his employee’s disability under all circumstances.  If despite his disability, his employee can comply with the requirement, or if the proportion of persons with a disability who can comply with the requirement is not considerably smaller than the proportion of persons without a disability who can comply with it, the application of the requirement is not discrimination.  In terms of proof, it would be more convenient to consider the issue in the reverse order of these requirements by asking, firstly, if the employee could meet the requirement; secondly, if the application of the requirement is reasonable; and thirdly, the question of proportionality.  If the answers to the first two questions are in the negative and to the last one is in the positive, then it is for the employer to show that the application of the requirement to his employee is justified irrespective of his disability of his lack of it.

11.The intention or motive of the discriminator is not a necessary condition to liability.  It makes no difference whether the discriminatory treatment is applied deliberately or thoughtlessly.  Intention or motive is irrelevant except in so far as remedies are concerned.  The test of discrimination is an objective one.  What the employee has to show is that on an objective view, but for his disability he would not have been treated differently, i.e. less unfavourably.

12.Section 11 of the Disability Discrimination Ordinance makes it unlawful for an employer, in the case of a person with a disability employed by him to discriminate against that employee by dismissing him or subjecting him to any other detriment.  Detriment means disadvantage.  This section provides the legal basis for a civil claim.  The purpose of the Ordinance is to eliminate as far as possible discrimination against a person on the ground of his disability.  In particular, the purpose of section 11 is to protect employment.  Thus, the word “dismissing” or “dismissal” must be given its broadest meaning, i.e. any form of termination of employment.  It must include termination by way of notice or wages in lieu of notice, otherwise it would frustrate the purpose of the Ordinance if an employee’s contract of employment could be terminated by notice or wages in lieu of notice for no reason other than his disability.  Giving of notice or payment of wages in lieu of notice only discharges an employer’s obligation under the contract of employment or under the Employment Ordinance.  They do not exempt an employer from liability for discrimination if the termination is an act of discrimination for the purpose of the Disability Discrimination Ordinance.  But, the dismissal is unlawful only if it is discriminatory within the meaning of section 6 in that it is connected to the employee’s disability.  Thus it could not have been the intention of the legislature that the Ordinance shall take away an employer’s common law right to dismiss an employee for cause or the statutory right to dismiss an employee under section 9 of the Employment Ordinance.  Were it 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 his its terms.  Thus, in my view, a dismissal is not discriminatory if summary dismissal is justified.  Putting that in another way, summary dismissal, if justified, provides a complete defence to an action for discrimination.

13.The burden is on the employee to prove that the dismissal is connected to the disability impugned.  There is no presumption of discrimination under the Ordinance.  However, the employee’s burden is partially lightened by section 3 which provides:

“	If –
	(a)	an act is done for 2 or more reasons; and
	(b)	one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act),
	then, for the purposes of this Ordinance, the act is taken to be done for the reason specified in paragraph (b).”

14.Thus, provided the employee can discharge the burden of proving that his disability is one of the reasons for the discriminatory treatment he received, it does not matter that there may have been other reasons or other more substantial reasons for the discriminatory treatment. In real situation, it is unusual to find direct evidence of the reason for the discriminatory treatment, proof will have to be by inference.  Thus, in connection with dismissal, if the employee is guilty of misconduct which justifies summary dismissal at common law or under section 9 of the Employment Ordinance, the dismissal is clearly not connected to the disability but to the employee’s misconduct.  Such dismissal is not unlawful for the purpose of the Disability Discrimination Ordinance.  If the employee dismissed is utterly without fault, it would not be difficult for the employee to show by other circumstantial evidence available that the dismissal is connected to his disability.  In an appropriate case, even in the absence of such circumstantial evidence, inference of discrimination could be drawn.  Such dismissal is unlawful for the purpose of the Disability Discrimination Ordinance.  But, in between these extremes are cases where the employee is guilty of misconduct of some sort which is short of a sufficient reason to justify his summary dismissal.  The issue in a claim for discrimination based on dismissal is whether the dismissal is connected to the employee’s disability and not whether the employer is entitled to summarily dismiss the employee at law.  Thus, even if the reason for dismissal falls short of a justification for summary dismissal, it does not cease to be a reason which explains the dismissal.  Depending on the circumstances, in the absence of any evidence that the dismissal is connected to the disability and if the reason is so compelling, it may rebut or negative the inference that could be drawn from the lack of a lawful justification for the summary dismissal.  The question is always whether the employee can show that the dismissal is connected to his disability.  The employer does not have to prove anything.  In fact, even if the employer is able to prove some other reasons for the dismissal, it would not avail him if the employee is able to prove that his disability is one of the reasons. In considering cases of discrimination, the court should not consider each incident in isolation, but should always bear in mind the cumulative effect of all the incidents on the disabled employee.

Harassment

15.“Harassment” is defined under section 2(6) of the Disability Discrimination Ordinance as:

“

For the purposes of this Ordinance, a person (howsoever described) harasses another person if that first-mentioned person engages in unwelcome conduct (which may include an oral or written statement) on account of that second-mentioned person’s disability, or on account of the disability of an associate of that second-mentioned person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the second-mentioned person would be offended, humiliated or intimated by that conduct.”

Section 22(2) makes it unlawful for a person, in the case of a person with a disability employed by him, to harass that employee.  This section provides the legal basis of a claim for harassment.

16.This definition of harassment imports both a subjective and an objective element.  The harassing conduct must be unwelcome and unsolicited and on account of a person’s disability which a reasonable person having regard to all the circumstances would have anticipated that the person subject to the conduct would be offended, humiliated or intimated by that conduct.  Section 11 applies equally to harassment so that 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.  Similarly, in considering harassment, the court should always bear in mind the cumulative effect of all the alleged harassing incidents on the disabled employee.

Credibility

17.The outcome of this case depends substantially on my finding of facts and the proper inference to be drawn from those primary facts.  Four witnesses gave evidence.  The fact finding in this case is particularly difficult as all the three crucial witnesses who were directly involved in this case, namely Ms Aquino, Ms So and Mr Leung, were not telling the whole truth.  I have no difficulties in accepting the evidence of the fourth witness, Ms Ma, but her evidence is of little significance.  Hereunder, I give an overall view of my assessment of the credibility of these four witnesses.  I shall deal more fully with my assessment of their credibility when I analyse their evidence.

18.Ms Aquino was obviously a simple and unsophisticated witness.  She put up a very sympathetic case, but which on a careful analysis is inconsistent with her contemporaneous complaints to the Labour Department and other incontrovertible evidence.  Her evidence is inherently incredible and full of exaggeration.  She was granted leave to re-open her case by giving evidence that the third warning letter produced by Ms So was a forgery.  But she seized on the opportunity to make fresh allegations in respect of other issues which she had given evidence on.  She impressed me as an unreliable witness.  She had a tendency to exaggerate and she lied indiscriminately so long as she thought it would further her cause.  She did not believe in telling the truth.  I do not believe in her evidence.

19.Ms So and Mr Leung are highly educated and intelligent persons.  They have good business and social exposure.  They performed impressively in the witness box.  They were sophisticated witnesses and had the ability to conceal the truth and misguide the court.  However, having so warned myself, I am nevertheless satisfied that Ms So was essentially telling the truth, except as regards her knowledge of Ms Aquino’s disability and the events on 26 December 2003, i.e. the date of Ms Aquino’s dismissal.  She shied away when Mr Leung effectively took over the dismissal of Ms Aquino and accused her of having damaged his suit and lost his golf club and drove her out of the flat without paying her anything.  In respect of those matters, she spoke with much less conviction.  I think that was because she was forced to go along with the false testimony of Mr Leung.  Apart from that and her assertion that she had no knowledge of Ms Aquino’s disability, Ms So was, on the whole, cogent and forthcoming in her evidence.  I accept most of her evidence.

20.Mr Leung was a great witness in the witness box.  He spoke with conviction and appeared to be very persuasive.  But, for reasons as I shall explain when I analyse the evidence, I consider his evidence inherently improbable.  I reject in its entirely his evidence about the damage to his suit and the hi-fi and the loss of his golf club caused by Ms Aquino.  Obviously, he took over the procedure of dismissing Ms Aquino from Ms So for the purpose of getting rid of Ms Aquino without paying her the arrears of wages and wages in lieu of notice by falsely accusing her of having damaged his suit and lost his golf club.  In furtherance of those accusations, he represented Ms So in the conciliation meeting with Ms Aquino in the Labour Department, while Ms So shied away from the conciliation meeting.  I find Mr Leung a dishonest witness.  I do not believe in most of his evidence.

21.Ms Ma is an Assistant Labour Officer of the Labour Department.  She was the officer who handled Ms Aquino’s claim.  She conducted the conciliation meeting between Ms Aquino and Mr Leung who attended the meeting on behalf of Ms So.  She is a non-interested witness.  She is an experienced officer.  She impressed me as being very knowledgeable with the provisions of the Employment Ordinance and its practical application.  She gave evidence in a straightforward and forthcoming manner.  I have no doubt in her honesty and impartiality.  I accept her evidence.

22.I now turn to examine the various incidents relied on by the parties. 

the  facts

The lunch on 19 October 2003

23.The first and most important incident relied on by Ms Aquino was the lunch on the third day of her employment.  That lunch was the most important building block of her case.  Ms Aquino said Ms So and her family treated her well at the beginning.  On the third day of her employment, i.e. 19 October 2003, Ms So and her whole family had lunch with her downstairs in a Chinese restaurant.  It is common ground that there was only one Chinese restaurant downstairs and that was the Good View Restaurant.  There, Ms Aquino said, the daughters noticed her deformity as she had to use her left hand to hold the chopsticks and the deformity on her right hand became apparent.  The daughters were dismayed on seeing her deformity and looked at one another.  The family conversed in Cantonese while looking at her hand.  On the next day, Ms So had a discussion with Ms Aquino alone at home and suggested that her deformity had something to do with her disease.  She said Ms Aquino could not perform her work and asked her to resign, but Ms Aquino refused.  Then Ms So demanded a medical certificate from her to prove that she was not suffering from any disease.  Ms Aquino could not produce such certificate.  Since then, Ms So and her family started abusing and torturing her.

24.However, Ms So gave an alibi which I am bound to accept.  Ms So said that 19 October 2003 was a Sunday and was Ms Aquino’s day off, even though it was her third day of work.  According to Ms So, her children were quite independent and she did not need a maid to help her on Sundays and the family members preferred to have the day by themselves.  Ms So’s evidence was that on that day the family had lunch in Maxim’s Restaurant in Chelsea Heights, after which the family went shopping in Festival Walk and had dinner in City University of Hong Kong.  She produced a visa card receipt signed by Mr Leung as evidence of their having lunch at Maxim’s Restaurant in Chelsea Heights and visa card receipts signed by herself as evidence of her shopping in Festival Walk and the dinner in City University of Hong Kong.  I could have no doubt that Ms So was telling the truth.

25.Under cross-examination, Ms Aquino appeared confused, equivocal and evasive.  While maintaining that they had that lunch on a public holiday, she was not sure if it was a Sunday or if it was her third day of work.  I have considered whether Ms Aquino might have mistaken the date or the day of the week when the lunch took place.  If ever that lunch had taken place, it could only have taken place on a Sunday or a public holiday in October 2003.  The nearest public holidays around that time were the National Day on 1 October 2003 and the Chung Yeung Festival on 4 October 2003, which were well before Ms Aquino started her employment with Ms So.  There was no other public holiday in October 2003.  Ms Aquino’s evidence hit hard upon a very solid alibi supported by incontrovertible documentary evidence.  I have no alternative but to dismiss her evidence about this incident as wholly fabricated.

26.Quite apart from this very solid alibi, Ms Aquino’s letter of complaint to the Labour Department dated 7 December 2003 also betrayed her.  In that letter, she made complaint of serious abusive conduct against Ms So and her family (see paragraphs 46 to 53).  While she mentioned that the family treated her well during the first two days but not thereafter, she mentioned nothing about that lunch and the family’s reaction upon sight of her deformed hand.  That lunch was an important event because according to her evidence it was the turning point of her employment with Ms So.  The family noticed her deformity and conversed secretively in Cantonese while looking at her hand.  And on the next day, Ms So accused her of being a disease person because of her deformity and openly asked her to resign.  Ms Aquino had time to add to that letter day after day until it was issued on 17 December 2003.  It is surprising that the letter was absolutely silent about these allegations, which point to the underlying cause of the ill-treatment and torture she received from Ms So and the family.  Even after giving very generous allowance for the fact that Ms Aquino was an unsophisticated person, I have no doubt that the only reason why she did not mention anything about that lunch and Ms So’s request for her resignation in that letter was because those events never happened and were recent fabrications made for the purpose of these proceedings.

27.Ms Aquino’s evidence is also incredible for the following reasons.  If Ms So had demanded a medical certificate, there was no reason why she would not have met that demand by obtaining one from a private medical practitioner or from any government clinic as her deformity was congenital.  Furthermore, in the taped conversation of 24 December 2003, Ms So never accused Ms Aquino as a disease person.  Her objection to Ms Aquino using her laundry net was for hygienic and personal reason.

28.For the above reasons, I reject Ms Aquino’s evidence about the lunch on 19 October 2003, the family’s reaction upon sight of her deformed hand, Ms So’s accusation that she was a disease person, Ms So’s demand for a medical certificate and request for her resignation.

Knowledge of Ms Aquino’s disability

29.Though I am satisfied that the lunch on 19 October 2003 never took place, an important question I have to decide is whether Ms So and her family had knowledge of Ms Aquino’s disability.  Ms So said she first came to realise something peculiar about Ms Aquino’s hand some weeks after Ms Aquino started her employment.  That would be sometime in November 2003.  Her attention was drawn to Ms Aquino’s hands because Ms Aquino often used both hands for holding a towel when performing cleaning work.  But she did not see what the deformity was and she never asked Ms Aquino.  She thought as long as Ms Aquino performed her work properly, she would not care about the deformity.  She mentioned that to her family members but none of them took any interest to find out what the deformity was. 

30.The deformity is a very minor one in that the middle three fingers of the right hand are partially fused and incompletely developed.  It is unnoticeable from the dorsal side of the hand especially if the hand is in motion or holding something.  Ms So was in full time employment.  The chances she had of making direct observation on Ms Aquino’s hand were slim.  It is not surprising that she only came to have knowledge of some peculiarity with Ms Aquino’s hand a few weeks after Ms Aquino started working for her.

31.Mr Leung said he did not know about any peculiarity with Ms Aquino’s hand until Ms So told him.  This is credible as Mr Leung left home early in the day.  He did not have breakfast at home.  On most of the mornings, he did not even see Ms Aquino before he left for work.  He did not take any interest in the work of Ms Aquino or supervise her in her work.  Despite my adverse finding on his credibility, I think this part of his evidence is credible.

32.However, I do not think it credible that after having become aware of some peculiarity with her hand, Ms So and Mr Leung were not curious enough to find out what that peculiarity was.  They must be curious to know what was wrong with the hand of the domestic helper with whom their daughters share a room together and in whose very hands they entrusted the care of their younger daughter.  They are intelligent and shrewd executives or businesspersons.  They must have an interest to know whether this peculiarity affected their domestic helper in her work and in taking care of the safety of their younger daughter.  A reasonable employer would have tried to find out at least discretely, if not openly and directly, what the peculiarity was.  A careful observation as Ms Aquino was working would have easily revealed what the deformity was.  I do not believe in their evidence in this respect.  I find that Ms So knew about Ms Aquino’s disability a few weeks after her employment began. 

First warning letter dated 11 November 2003

33.Within less than a month of her employment, Ms So issued Ms Aquino the first warning letter on 11 November 2003.  By that time, Ms So must have had knowledge of Ms Aquino’s disability.  The warning letter contained the following allegations of misconduct:

(1)	damaging a ventilator fan, a bowl and a plate;
(2)	locking the dog in the toilet without keeping the key to open the door;
(3)	locking out the family and falling asleep;
(4)	buying spoilt fruits at least twice a week;
(5)	failing to turn off the washing machine;
(6)	failing to pick up the younger daughter from ballet class on 24 October 2003, causing her to wait for 30 minutes;
(7)	absenting after attending the Immigration Department and failing to pick up the younger daughter from school;
(8)	failing to buy necessities, such as cooking oil and tissue paper; and
(9)	ignoring personal hygiene by keeping dirty clothes inside drawers.

Except for items (6) and (7), the other acts of misconduct in isolation were trivial.  Ms Aquino denied the truth of some of the allegations contained in the letter and explained that her other failures were not deliberate.  She said she signed the warning letter under the threat of losing her job if she refused to sign.  I now deal with the two major allegations and the damage to the ventilator fan.

34.Ms Aquino admitted being late in picking up the younger daughter from ballet class on 24 October 2003 but said she was only about 5 minutes late.  She explained that she was late as she had to go to two different supermarkets to buy salmon heads because Ms So threatened to dismiss her if she failed to make the purchase.  She said it only took her 5 minutes to travel between the two supermarkets on foot.  Though the daughter was not called to give evidence while Ms So’s evidence was only hearsay, I have no difficulties in rejecting Ms Aquino’s evidence.  She had demonstrated herself to be a very exaggerating and defensive witness who was always ready to add new evidence and make false allegations for the purpose of advancing her cause.  The time for the ballet class could not have allowed her enough time to shop in the supermarket in Greenland Garden, then travel to Chelsea Heights to shop in the supermarket there and return.  Having seen the plan showing the locations of the two supermarkets, I accept Ms So’s evidence that the journey between Greenland Garden and Chelsea Heights would take 8 to 10 minutes either way by public light bus.  Even if Ms Aquino’s explanation is true, she must have been late for about half an hour.  The younger daughter was a girl of ten.  It was a serious neglect not to pick up the daughter punctually in wanton disregard for her safety. 

35.As for Ms Aquino’s failure to pick up the younger daughter from school, Ms Aquino simply denied it was true.  In particular, she denied she had switched off her mobile phone but suggested that the battery had gone flat.  According to Ms So, Ms Aquino absented herself after attending an interview in the Immigration Department and switched off her mobile phone so that she was out of contact and she did not pick up the younger daughter from school.  In the end, Ms So had to pick up the daughter after she went off work.  Ms Aquino was charged with the duty of picking up the daughter.  Even if she was delayed in the interview at the Immigration Department and was not aware that her mobile phone had run out of battery, she should have taken the initiative to contact Ms So or Mr Leung to make alternative arrangements for picking up the daughter.  She could not leave the daughter unattended and do nothing to inform the parents, when she was charged with the duty of picking up the younger daughter after school.  Ms Aquino’s bare denial carries with it no conviction at all.  I have no difficulties in accepting Ms So’s evidence and rejecting Ms Aquino’s.  Ms Aquino’s failure to pick up the daughter from school was a serious misconduct and one which any concerned parent would view with seriousness.

36.Ms Aquino admitted damaging the ventilator fan while cleaning it but attributed that to the old condition of the fan.  That was a very trivial matter.  However, Ms Aquino’s evidence betrayed herself as an exaggerating witness.  She wrote thrice to the Labour Department in a letter dated 7 December 2003, a letter dated 25 January 2004 and in another undated letter after the conciliation meeting.  In the first and third letters, she complained about the ill-treatment, the torture and the system of fines.  She mentioned the incident about the fan but never complained about being fined by Ms So or being required to pay for the fan.   In her second letter to the Labour Department dated 25 January 2004, she listed out the fines that she had paid, but she did not mention anything about the fine or compensation for the ventilation fan.  However, under cross-examination, when she was asked if she was fined in relation to this incident, she alleged for the first time that she was fined or ordered to pay compensation of $250.  Her explanation for not mentioning the compensation in her letters to the Labour Department was that she had written down the fine on a piece of chewing gum paper which she had misplaced.  That was the single and largest amount of fine or compensation she was made to pay.  She recalled it while under cross-examination.  Even if she had lost the piece of chewing gum paper on which the fine was written, there was no credible reason why she could have forgotten about the fine when she complained about the very incident in two of her complain letters when the incident was still fresh in her mind.  There was also no reason why she would have forgotten about the fine in her witness statement, which must have been prepared with the assistance of her solicitors.  On the other hand, if Ms So had imposed the fine, she would only be too happy not to cross-examine Ms Aquino about it than to provoke an adverse response.  I have no difficulty in dismissing Ms Aquino’s allegation about being required to pay compensation for the ventilation fan as a recent fabrication.  The incident shows Ms Aquino is an exaggerating witness who was making up her evidence in the witness box as the trial progressed.

37.Because of the very unfavourable view I formed of Ms Aquino’s credibility and the relatively more favourable view I formed of Ms So’s credibility, I am satisfied on a balance of probability that the other allegations contained in the first warning letter were also true. 

Second warning letter dated 2 December 2003

38.Three weeks after issuing the first warning letter, Ms So issued the second warning letter to Ms Aquino.  In this warning letter, Ms So alleged the following misconducts:

(1)	bought unknown Chinese medicine at $5 for making soup on 17 November 2003;
(2)	bought unhealthy meal for family on 17 November 2003;
(3)	absentmindedness in putting hair in the master bedroom toilet bowl and misplacing sewing needles on 15 November 2003;
(4)	ignoring instruction to go to market on 29 November 2003;
(5)	neglecting personal hygiene during menstrual period on 18 November 2003 and putting clean clothes in a dirty basin on 23 November 2003;
(6)	failing to clean up dog droppings despite repeated   instructions on 29 November 2003;
(7)	using the toilet in the master bedroom;
(8)	ignoring instructions not to cook instant noodles for the daughters, not to open door without checking and not to waste time shopping in two different supermarkets;
(9)	repeatedly failing to turn off the gas after shower; leaving refrigerator door half-open; failing to handle her work independently; and
(10)	refusing to warm up lunch for the younger daughter and cooking instant noodle in breach of instructions.

39.Ms Aquino admitted signing receipt for the letter but said that she did so under the threat of losing her job if she refused to sign.  She denied most of the allegations and offered explanations for the others.  For example, she explained that it was the daughter who misplaced the sewing needles, that it was the elder daughter who used the toilet in the master bedroom and she did clean the toilet afterwards.  These allegations were Ms So’s words against Ms Aquino’s.  They were trivial.  Ms So’s allegations were specific, but Ms Aquino’s denials were vague. 

40.However, there were extrinsic evidence which suggest Ms Aquino’s denials were untrue.  In her letters to the Labour Department, Ms Aquino complained that she was fined almost for each and every act of specific misconduct.  In the letters, she said she was fined $10 for using a sewing box for sewing a button for Mr Leung and Ms So threatened to fine her $100 if she touched the sewing box again.  She said she was fined $5 for failing to switch off the washing machine or the water heater after shower and $50 for not closing the door of the refrigerator etc.  I do not believe in the truthfulness of her complaints and I have doubts about her motive in writing those letters (see paragraphs 46 to 53).  While I note that Ms Aquino denied having made the mistakes, her letters of complaint to the Labour Department suggest that she did make the mistakes alleged, her complaint was that she had to pay a fine for each of the mistakes.   

41.On an objective view, Ms Aquino’s explanation was also inherently incredible.  Her allegation about the fine of $10 for sewing a button on Mr Leung’s long sleeve shirt was a blatant example of exaggeration.  According to Ms Aquino, the circumstances under which the fine was imposed were as follows.  On 26 November 2003, Mr Leung told Ms Aquino to sew the button, but Ms So instructed her not to but to shop in the market first.  She complied with Ms So’s instruction by going to the market and after she had finished her day’s work she sewed the button for Mr Leung.  What she did must be something which both Ms So and Mr Leung should be pleased about.  It is incredible that in the circumstances Ms So would have fined Ms Aquino.  Not only that, Ms Aquino’s evidence also hit upon another alibi.  Ms So produced documentary evidence of Mr Leung’s leave record showing that on that day, Mr Leung was at work.  It was impossible that Mr Leung would have given instruction to Ms Aquino to sew the button under the circumstances as described by Ms Aquino.

42.Given the unfavourable view I formed of Ms Aquino’s credibility and the more favourable view I formed of Ms So’s credibility, I find that Ms Aquino did make the mistakes alleged in the second warning letter.

The incident on 5 December 2003

43.What brought about a further deterioration in the relation between Ms So and Ms Aquino was the incident on 5 December 2003, three days after the issue of the second warning letter.  The younger daughter did not have to go to school that morning and Ms Aquino took her to PARKnSHOP for shopping.  For one reason or another, Ms Aquino lost hold of the daughter for about two hours until they met again outside Watsons two levels below PARKnSHOP in the shopping centre. 

44.Ms Aquino’s evidence was that she had three items to shop in the supermarket which would take about 15 minutes, however the daughter said it was boring in the supermarket and asked to be allowed to go window shopping in the shops below.  Initially, Ms Aquino refused to let the daughter go, however the daughter used abusive language at her and said she would tell her parents to dismiss Ms Aquino.  Eventually Ms Aquino agreed to let the daughter go and to meet her outside Watsons later.  After Ms Aquino finished her shopping, she went downstairs to Watsons but could not find the daughter.  She went looking for the daughter in the shopping centre and in her school but could not find her.  Then she returned to Watsons where she met the daughter.  She and the daughter had a dispute and the daughter used abusive language at her again and called her stupid.  According to Ms Aquino, the daughter said she would tell her parents to dismiss Ms Aquino and that her parents would not believe in what Ms Aquino would say.

45.The daughter was not called to give evidence in these proceedings and understandably so.  There was therefore no evidence from Ms So as to what happened during the incident.  In the third warning letter to Ms Aquino, Ms So’s account of the incident was that Ms Aquino and her daughter agreed to meet each other at the cashier counter of PARKnSHOP after 15 minutes but Ms Aquino failed to show up and the daughter found her in front of Watsons two levels below.  This letter supports Ms Aquino’s evidence that there was an agreement between her and the daughter to part company with one another and to meet after 15 minutes.  On Ms Aquino’s evidence which I am bound to accept, she took the younger daughter out for shopping, the suggestion to part with each other came from the daughter and there might be a misunderstanding between the parties as to where to meet.  Even on Ms Aquino’s account, it was a serious breach of duty for Ms Aquino to part company with the younger daughter in the circumstances.   

Ms Aquino’s complaint  dated 7 December 2003: the torture and abuse

46.After the receipt of the two warning letters and the incident on 5 December 2003, Ms Aquino started writing to the Labour Department on 7 December 2003.  She added on new allegations day after day.  The letter was eventually sent to the Labour Department on 17 December 2003.  The various incidents complained of in that letter actually formed the basis of Ms Aquino’s claim.  She wrote in that letter that the family treated her well during the first two days but not thereafter.  The essence of her complaint was about ill-treatment, torture and fine.  She said Mr Leung and the daughters tortured her, shouted at her using obscene language, pushed her, wanted to hit her and wanted to kill her.  She complained that she was fined for returning home late on her holidays.  She was fined $5 for eating a piece of bread, $50 for eating a piece of left-over fish which Ms So threw away after fining her, $10 for sewing a button on Mr Leung’s long sleeve shirt, $5 for not switching off the water heater after her shower or for not holding the dog when opening the door or for leaving a window open, $1 for stepping on the marble floor and $50 for leaving the refrigerator door open.  She complained that she was not fully reimbursed the money she had spent in shopping for the family.  She complained that Mr Leung wanted to kill her for letting the dog run out of the flat.  She also mentioned that Ms So became angry and wanted to dismiss her for offering coffee to her daughter. 

47.Ms Aquino was cross-examined about the physical torture she received and the threat on her life.  She admitted that the family did not do anything indicating their wish to kill her or anything by way of physical torture but indicated an intention to harm her.  Put at the highest, the harmful acts were just gestures, pushes and kicks by the daughters.  The allegations were unspecific. 

48.As for verbal abuses, Ms Aquino said she was called names and was called “stupid”.  The daughters said words like “fuck you stupid”, “fuck you lady”, “get out” and “we hate you so much”.  Ms Aquino admitted that Ms So loved her daughters very much.  Ms So and Mr Leung were well educated and were holding respectable positions in their respective employment.  They cared for their daughters’ upbringing as indicated by their arranging ballet and piano lessons for their daughters.  Ms So, in particular, impressed me as a very demanding woman and caring mother.  Despite that she poured abuses on Ms Aquino on 24 December 2003 while she was in a state of provocation, not a single obscene word was recorded in that 15 minute conversation, though she used the word “stupid” once.  It is incredible that Ms So and her husband would utter such abusive and obscene words at Ms Aquino in the presence of their daughters or would teach their daughters to use obscene words or connive at their doing the same.  I think this allegation is nothing but a concoction on the part of Ms Aquino.

49.Ms Aquino said she was scolded, abused and fined for failing to hold the dog when she opened the main door and that Mr Leung wanted to kill her because of that.  Mr Leung’s evidence was that he instructed Ms Aquino to keep the dog in the toilet whenever she opened the main door for throwing away the garbage or for whatever reasons, but Ms Aquino ignored his instruction which resulted in the dog running out of the flat on a number of occasions.  Mr Leung denied ever losing his temper.  Ms So denied fining Ms Aquino for letting the dog run out of the flat.  Ms Aquino was unable to offer any evidence how Mr Leung wanted to kill her.  I have no doubt that there was no substance in Ms Aquino’s complaint.  Mr MacKenzie-Ross suggested that the family was playing with the dog when Ms Aquino opened the door to throw away the garbage and Mr Leung put the blame on Ms Aquino when the dog ran out of the flat.   These may well be some of the occasions when the dog ran out of the flat for which Ms Aquino was not responsible.  But I am sure those were not the occasions referred to by Mr Leung and Ms So in the warning letter.  Mr Leung’s instruction was reasonable.  Even if he had lost his temper and reprimanded Ms Aquino for her the mistake, there is nothing to suggest he wanted to kill her.  I consider Ms Aquino’s allegation an exaggeration.

50.In respect of Ms Aquino’s complaint that she was fined for returning late on her rest days, Ms So denied ever imposing any fine.  Mr MacKenzie-Ross took a twist in Ms Aquino’s case and argued that it was a breach of the law to require Ms Aquino to return early as she was entitled to a full 24 hour break.  Ms So did not deny that she had imposed a house rule that Ms Aquino should return home by 9:30 pm on her rest days.  It is common for employers to impose such a house rule.  The rule makes practical sense.  It works to the mutual convenience of the employer and the employee.  This house rule is negotiable and is subject to the mutual agreement of the employer and employee.  If for any reason an employee has to return late, she may ask for leave from her employer.  If leave is unreasonably withheld, she can likewise withdraw her agreement to the rules.  In my opinion, so long as the employee is not required to work on her rest days and that the house rule is reasonable, it is not illegal for the employer to impose a house rule as to when the employee should return home on her rest days.  Ms Aquino never alleged or complained that she was required to work on her rest days, or that the house rule was unreasonable or that leave to return late had been unreasonably withheld.  I think Mr MacKenzie-Ross’ argument is just a counsel’s point and not Ms Aquino’s complaint.  Ms Aquino’s complaint was about the fine.  In any event, the legality or otherwise of the house rule is a distinct and separate issue from discrimination.  Illegality does not per se render the imposition of the house rule an act of discrimination.

51.The allegations about the fines were also incredible.  Such allegations were easy to make.  The alleged fines were extraordinary and out of any proportion to the possible damage suffered by Ms So for Ms Aquino’s misconduct, particularly $50 for eating a small piece of left-over fish to be thrown away in any event and $50 for leaving the refrigerator door open.  So too were Mr Leung’s threat of fining Ms Aquino $10,000 for allowing the dog to jump on the old sofa and Ms So’s threat of deducting two years’ wages for Ms Aquino causing scratches on the floor.  Though Ms Aquino quoted a list of fines, she mentioned nothing about being ordered to pay $250 for the ventilator fan.  I have already found that allegation to be her concoction (see paragraph 36). 

52.On the other hand, even on Ms Aquino’s own case, no fines were imposed for her repeated misconducts which Ms So was particularly annoyed about and in respect of which there was more reason for imposing a fine.  For example, no fine was imposed for Ms Aquino’s repeatedly ignoring Ms So’s instruction not to hang clothes in the kitchen or for making a hole in the cupboard.  As revealed in the taped conversation on 24 December 2003, Ms So was particularly annoyed about Ms Aquino’s failing to turn off the ventilator fan on numerous occasions.  Yet, at the height of her anger, Ms So did not impose any fine when she had better reason for fining Ms Aquino for her repeated breaches of her instructions.  I do not think there was any truth in Ms Aquino’s allegation about the fines. Her complaints about the fines were concoctions.  I find that her letter was written to lay the foundation for a claim for dismissal without notice which Ms Aquino anticipated would be forthcoming in view of the two warning letters and the incident on 5 December 2003 (which was just two days before she started writing) and because she knew Ms So was very dissatisfied with her performance.  However, because of Mr Leung’s exceedingly high-handed and oppressive conduct at the conciliation meeting in the Labour Department, Ms Aquino did not have the occasion to make use of the letter (see paragraph 95).

53.Save for the house rule that Ms Aquino should return to the flat by 9:30 pm on her rest days, I reject in its entirety Ms Aquino’s evidence about the torture and ill-treatment she received from Ms So and her family as mere concoctions.  For reasons as I have explained, I do not consider the imposition of the house rule unreasonable.

The incident on 24 December 2003

54.Ms So had instructed Ms Aquino not to hang clothes for drying in the kitchen as it was greasy and hazardous.  She instructed that clothes should be hung up for drying in the two toilets and on the drying rack outside the flat.  But Ms Aquino repeatedly ignored that instruction as it was a tedious task to hang clothes on the drying rack.  Ms So had also instructed Ms Aquino to switch off the ventilator fan whenever it was not necessary. 

55.On the morning of 24 December 2003, Ms Aquino was making a hole in a cupboard in the kitchen.  Ms So was alerted by the noise and went to the kitchen to see what was going on.  She became angry when she saw Ms Aquino making a hole in the cupboard, the clothes hanging in the kitchen and the ventilator fan switched on.  She started scolding Ms Aquino.  Then Ms So became furious when she opened the washing machine and discovered her laundry net was being used by Ms Aquino for washing Ms Aquino’s underwear.  She accused Ms Aquino of theft of her laundry net for using it without her consent.  She accused Ms Aquino of being cunning and of being a thief.  Likewise, she then accused Ms Aquino of stealing her mobile phone charger, her perfume, her underwear etc.  She repeated the accusation many times.  These allegations of theft were without any basis at all.  The conversation was recorded by Ms Aquino in her mini recorder. 

56.Furthermore, according to Ms Aquino, Ms So took the tool which Ms Aquino was using for making the hole in the cupboard and poked it at Ms Aquino’s left hand.  Ms Aquino said that while scolding her, Ms So also pointed at Ms Aquino’s deformed hand which was then resting on the washing machine and said:

“	So thank God why your is like that, blame yourself.  It’s because you always don’t walk in the right direction, too cunning, too tricky.”

Ms Aquino said that the above remarks were directed at her deformed hand and she felt very hurt.

57.Ms So denied that she had poked Ms Aquino’s left hand and denied having said the above.  According to Ms So, what she said was as follows:

“	Don’t blame God why your destiny is like that, blame yourself.  It’s because you always don’t walk in the right direction, too cunning, too tricky.”

After listening to the tape, Mr MacKenzie-Ross conceded as he was bound to that Ms So’s version of her conversation was correct. 

58.Ms So explained that at the time she spoke those words, she had in mind dismissing Ms Aquino two days later “so that Ms Aquino might have a happy Christmas”.  I think that was an inept way of expressing that she wished to save Ms Aquino the unhappiness of being dismissed on Christmas Eve.  Thus, according to Ms So, the word “destiny” was used with Ms Aquino’s pending dismissal in mind.  Ms So denied she was pointing at Ms Aquino’s hand when those words were spoken.  I accept her explanation.  The word “destiny” could not have been intended to refer to Ms Aquino’s deformed hand because such an interpretation does not sit well with the sentence that followed.  Whether Ms Aquino was tricky or cunning after birth could not have any causal connection with her deformity at birth, but could lead to her dismissal in two days’ time.  Thus I accept Ms So’s evidence that she was not pointing at Ms Aquino’s hand when those words were spoken. 

59.The tape was transcribed by Ms Aquino’s solicitors.  On a careful listening of the tape, one could not have mis-transcribed the conversation in the way it was done.  I am not suggesting any lack of good faith on the part of Ms Aquino’s solicitors or their staff responsible for the transcription.  However, it must be clear to Ms Aquino’s ears at the scene and at the time when those words were spoken what they were.  Even allowing for the confusion at the time and Ms Aquino’s inability in understanding English, I think Ms Aquino could not have been honestly mistaken as to what was said and done by Ms So.  In the context of those words as spoken by Ms So, it makes no sense for Ms So to point at Ms Aquino’s hand as she was speaking.  Obviously, Ms Aquino was conveniently and dishonestly adopting and taking advantage of the mistake of those transcribing the tape for her to build a case that Ms So was pointing at her deformed hand and insulted her and that she felt very hurt by Ms So’s remark.  This part of the conversation was the main thrusts of Ms Aquino’s case.  Not only did that thrust fall apart, Ms Aquino’s credibility was badly dented as a result.

60.The rest of the conversation was about Ms So’s abusive accusations of theft against Ms Aquino.  When Ms So discovered Ms Aquino used her laundry net in washing Ms Aquino’s own underwear, Ms So said:

“

Why you steal my things?  If you don’t ask me that is steal my things.  Why I mix up with your clothes?  How do I know your personal hygiene is OK?  Buy a new one for me.  You buy a new one for me.  That one goes to you OK.  You buy a new one to me at your own money.  How can I share those things with you?  It’s something very personal. This is not the first time. I don’t think that is the only thing.  Can you listen to me?”

Ms So said she felt very personal about her laundry net and was very annoyed about Ms Aquino using it to wash Ms Aquino’s underwear.  Her anger arose out of her personal sensitivity and for reasons of personal hygiene.  I can fully understand her feeling especially as she had taken care to instruct Ms Aquino that her clothes should be washed separately from the family’s.  It is not uncommon for employers to instruct their maids to wash their clothes separately.  But that does not absolve Ms So from blame for her abusive attitude.

61.As for the accusation of theft, Ms So explained that she had been taught by her mother that taking another person’s property without asking was theft.  What her mother taught her had its origin from a common Chinese saying.  However, that saying did not take into account the element of dishonesty and permanent deprivation under the statutory definition of theft.  Mr Leung supported Ms So’s view about theft.  It is pathetic for people of their age and education, particularly Mr Leung who had been educated in the States, to have held such a view.  Even if Ms Aquino had been dishonest in using Ms So’s laundry net contrary to her express instruction, there was nothing to suggest that she had any intention to permanently deprive Ms So of her laundry net.  The accusation of theft of the laundry net was unjustified.

62.In that conversation, Ms So also accused Ms Aquino of theft of her mobile phone charger.  Ms Aquino explained that she borrowed the charger from the younger daughter and she put the charger back to where it was after use.  Ms So reiterated that was theft as Ms Aquino did not have her consent and she was not aware of the unauthorised use until 24 December 2003.   Ms Aquino had been using the charger since October 2003.  Ms So must also have been using the charger during those two months.  That must support Ms Aquino’s evidence that after using the charger she put it back to where she took it, though on 24 December 2003 it was in her possession while she was actually using it.  Ms Aquino was neither dishonest nor had the intention to permanently deprive Ms So of the charger.

63.Ms So lost her temper and repeatedly scolded Ms Aquino for a few mistakes.  However, she did not pass any disparaging and degrading remarks about Ms Aquino’s deformed hand.  She behaved abusively and accused Ms Aquino of “theft by borrowing” her laundry net and mobile phone charger and possibly of her underwear and cosmetics, etc.  Such accusations were unfounded and unduly abusive.

The incident on 26 December 2003: the third warning letter and dismissal

64.On the morning of 26 December 2003, Ms Aquino was dismissed.  According to Ms Aquino, Mr Leung was inside the study room holding an iron, presumably ironing his clothes.  Mr Leung asked her for the keys of the flat saying that he had lost his.  Ms Aquino fetched her set of keys and gave them to Mr Leung.  Then Mr Leung gave her two striped bags and asked her to pack her belongings.  Ms Aquino did as she was told.  Mr Leung’s evidence was that Ms Aquino was in the study room ironing clothes.  He went in and told her to unplug the iron and to return him the keys.  After that he informed Ms Aquino that she was dismissed and gave her two striped bags to pack up her belongings. 

65.Both Mr Leung and Ms Aquino were incredible witnesses.  Both of them were not telling the whole truth.  Ms Aquino had a tendency to exaggerate and distort the truth whenever she thought it might be to her advantage.  On the other hand, Mr Leung was a much cleverer person.  He lied for a purpose.  I prefer Mr Leung’s evidence as being closer to truth.  There was no need for Mr Leung to give an excuse for getting back the keys, after all he would change all the locks of the flat after Ms Aquino left and he would be announcing Ms Aquino’s dismissal and telling her to pack up within minutes.  I think Ms Aquino’s evidence that Mr Leung was holding an iron was obviously another concoction made for the purpose of setting the scene for alleging Mr Leung of damaging his own suit for the purpose of framing her up for another mistake (see paragraph 77).

66.Then, according to Ms Aquino, after she had finished packing up, she went to the dining table.  Mr Leung showed her the third warning letter and told her that she had to sign the letter before he would give her wages, wages in lieu of notice and an air ticket etc.  Ms Aquino said the contents of the letter were not explained to her and the allegations were untrue.  She said she was crying and refused to sign, but Ms So and Mr Leung were angry and refused to listen to her explanation.  They insisted her to sign otherwise they would not pay her.  She was forced to sign and she eventually signed.  According to Ms So, she had explained the contents of the warning letter to Ms Aquino.  Ms Aquino was unhappy and hesitated before signing.  Then Ms So’s evidence became equivocal.  She said she left it to Mr Leung to discuss the terminal payment with Ms Aquino and she did not hear their conversation. 

67.The differences between Ms Aquino’s and Ms So’s account were insignificant and immaterial, except as regards their credibility.  It was common ground that Ms Aquino had been told by Mr Leung that she was dismissed.  Then she was shown the third warning letter which contained allegations of misconduct and she was told to sign on the letter which she did.  Despite Ms Aquino alleged that the contents of the letter had not been explained to her, she said she knew the contents and said that they were untrue.  I am satisfied that Ms So had explained the contents of the letter to Ms Aquino.  At that stage, Ms Aquino’s dismissal was a reality.  There was no need for her to accommodate the wishes of Ms So by signing the letter as she allegedly did on receipt of the last two warning letters.  I find Ms So’s evidence that she left the dining table at that important moment leaving it to Mr Leung to handle the situation equivocal, evasive and incredible.  I think Ms So was trying to dissociate herself from something untoward which went on at the dining table which brought about Ms Aquino’s signature on the letter and the subsequent events.  Accordingly, I accept Ms Aquino’s evidence that she was crying and refused to sign but was then induced and coerced by Ms So and Mr Leung to sign the third warning letter under the promise that she would be paid if she did.  But, as I said, nothing significant turned on this finding.

68.The letter alleged that Ms Aquino’s performance was unacceptable and that she failed to change her working habit after the first two warning letters.   The third warning letter alleged the following recent acts of misconduct:

(1)	reheating fish left over by Ms Aquino as the younger daughter’s lunch;
(2)	damaging Mr Leung’s sweater by washing, despite instruction to have it taken for dry-cleaning;
(3)	the incident on 5 December 2003;
(4)	enticing the younger daughter to drink coffee; and
(5)	damaging the hinge of the kitchen cupboard without informing Ms So.

It then went on to terminate Ms Aquino’s contract of employment.  It is therefore in substance a letter of termination stating the reasons for the termination and not a warning letter. 

69.However, after Ms Aquino had closed her case, she made the further allegation that the third warning letter which was produced in Court by Ms So was not the same copy of the letter she signed and what purported to be her signature was a forgery.  She alleged that the letter she signed only contained two allegations of misconduct, i.e. items 3 and 4.  She was granted leave to re-open her case.  She said that she had not been given a copy of the letter which she had signed.  As a matter of fact, she did not produce her own copy of the third warning letter in her bundle of documents, but she did produce copies of the first two warning letters.  Ms So’s evidence was that Ms Aquino had been given a copy of the third warning letter and denied that the copy she produced in Court was any different from the one that Ms Aquino signed and that her signature was a forgery.

70.The purported signature of Ms Aquino on the third warning letter is somewhat different from her signatures on the other two warning letters.  In fact, her signatures on all the other documents produced in Court are not entirely consistent in all respects.  In the absence of handwriting expert evidence, I am not satisfied that the signature on this third warning letter was a forgery.  Not only that, I am satisfied on the totality of the evidence that what purported to be Ms Aquino’s signature on the third warning letter was in fact hers.  The additional allegations of misconduct were not very serious.  They had little to add to Ms So’s case.  If Ms So had in mind to forge the letter, she would have included the more substantial allegations about the loss or theft of the golf club and the damage of Mr Leung’s suit and the tuning knob of the hi-fi which Mr Leung later alleged at the conciliation meeting.  I consider Ms Aquino’s last minute allegation highly suspicious. 

71.Mr MacKenzie-Ross attempted to explain Ms Aquino’s delay in raising this issue of forgery on the ground that Ms Aquino was only shown the third warning letter at trial and while in the course of giving evidence she could not have discussed the issue with her solicitors.  I am not at all convinced by such a superficial explanation.  Ms So had given her trial bundle to Ms Aquino’s solicitors in May 2004, three months before the trial first began.  Ms Aquino’s solicitors must have taken Ms Aquino through the trial bundle.  The warning letters were very important documentary evidence in this case.  Her solicitors must have read each and everyone of them cautiously and must have discovered the third warning letter as there was no such letter in Ms Aquino’s bundle.  They must have drawn Ms Aquino’s attention to this letter and explained the contents to her.  If there was any truth in her allegation, she would have pointed out the differences to her solicitors and raised the question of forgery before trial began.  But she did not.  On the other hand, Ms Aquino has demonstrated herself to be a person devoid of credibility.  I am sure she seized on the slight variation in her signature on the third warning letter and conveniently added on a new allegation to boost her case.  I find the allegation of forgery another of her exaggerations.  I am satisfied that Ms Aquino had been given a copy of the third warning letter.  She might have lost or misplaced it in the confusion at the time of her dismissal.  She might even have left it behind in the flat.

72.As I have already mentioned earlier, after Ms Aquino was granted leave to re-open her case about the authenticity of the third warning letter, she volunteered fresh evidence about other matters which had not been heard before.  It was put to her in cross-examination that Ms Ma had taken her through the third warning letter at the conciliation meeting.  Then Ms Aquino jumped on the occasion and volunteered that the suit which Mr Leung showed Ms Ma and alleged to have been damaged by her was not the same one he showed her on the date of her dismissal.  In respect of the damage to the suit, I find against Mr Leung.  But it is incredible that Mr Leung would have chosen to damage another suit for the same purpose.  The above incident shows that Ms Aquino had a tendency to exaggerate and she was making up her case as the hearing progressed (see paragraph 77) 

73.I now turn to consider the allegations contained in the third warning letter.  Ms Aquino denied to have committed the misconduct alleged in the letter.  I have already dealt with the incident on 5 December 2003 separately and found it was a serious act of misconduct (see paragraphs 43 to 45).  Ms Aquino denied giving the younger daughter coffee to drink.  However, she forgot in her letter dated 7 December 2003 to the Labour Department, she did mention that incident.  She said in that letter as the younger daughter was hungry, she offered her coffee and biscuits to the daughter but the daughter reported the matter to Ms So.  She wrote in that letter that Ms So scolded her and accused her of having bad intention towards the daughter by giving her coffee.  She wrote that Ms So was so angry that Ms So even said that night she would dismiss Ms Aquino.  I find that Ms Aquino did offer coffee to the younger daughter.  Ms Aquino did not give any specific explanation in respect of the other acts of misconduct, namely the damaged sweater and the damaged hinge. I reject her allegation that the third warning letter now produced in Court was not a copy of the one that she signed which did not contain the other alleged acts of misconduct.  I have no doubt that she had committed all the mistakes in the third warning letter.

74.Mr MacKenzie-Ross criticised the third warning letter as not a warning letter at all since no chance was given to Ms Aquino to improve herself for she was dismissed forthwith.  Ms So argued that it was nevertheless a warning letter so that Ms Aquino would not commit the same mistake before another employer.  I reject that argument.  The letter was not a warning letter.  In the last paragraph it stated unequivocally that it was a letter of termination.   Be that as it may, I have no doubt that the allegations in the third warning letter were true.  Of those allegations, the misconduct relating to the incident on 5 December 2003 was a serious one, though the others were not. 

75.I now return to what happened after Ms Aquino signed the third warning letter.  It is common ground that after Ms Aquino signed the third warning letter, Mr Leung took out his summer suit showing a burnt mark and a hole and accused Ms Aquino of damaging his suit and of losing his golf club.  Mr Leung said the damaged suit cost $6,000 and the missing golf club cost $20,000.  Ms Aquino was not paid any wages or given a return air ticket to the Philippines or cash in lieu.  Ms Aquino refused to leave and called the Philippines Consulate and the police for assistance.  Subsequently, the police arrived and advised Ms Aquino to make a claim in the Labour Department.  Ms Aquino left.  All these events are not in dispute.  What is in dispute is the truth of Mr Leung’s allegation about the damage to his suit and the loss of his golf club.

76.According to Ms Aquino, Mr Leung said because of the damage to his suit and the loss of the golf club, he would not pay Ms Aquino and that even if she went to court no one would believe her.  Ms Aquino denied having damaged the suit.  She said that she cleaned the golf clubs on 13 December 2003 and kept them inside the cabinet.  She did not lose any one of them.  Both Ms Aquino and Mr Leung were incredible witnesses.  However, I accept Ms Aquino’s evidence on this issue, primarily because I consider Mr Leung’s evidence not only inherently improbable but also incapable of belief.  I shall nevertheless make a few observations on Ms Aquino’s evidence in connection with my assessment of her credibility.

77.In her third letter to the Labour Department, Ms Aquino said the suit was damaged by an outside laundry.  However, at trial, she gave evidence that Mr Leung was ironing clothes in the study room in the morning of 26 December 2003 and suggested through her counsel that it was Mr Leung who “put the iron on the summer suit”, presumably meaning that Mr Leung damaged his own suit and put the blame on Ms Aquino.  It should also be recalled that when Ms Aquino was allowed to re-open her case, she volunteered that the suit which Mr Leung produced at the conciliation meeting was yet a different suit.  This suggests Mr Leung damaged two suits for the same purpose of creating a blame on Ms Aquino.  This is hardly credible. This is another example that Ms Aquino’s evidence is inconsistent with her previous statement, that she had a tendency to exaggerate and that she was making up her evidence as the trial progressed. 

78.I now turn to Mr Leung’s evidence and the reason why I disbelieve him.  According to Mr Leung, he discovered his suit damaged as it was hung conspicuously in the first position in the wardrobe.  It is just incredible why he did not complain to his wife about the damage or point that out to Ms Aquino until the date of her dismissal.  It was also unlikely that Ms Aquino would have ironed Mr Leung’s summer suit around Christmas time.  The suit was probably damaged before Ms Aquino started working for Ms So.  Mr Leung said he discovered his golf club missing on the Friday night or Saturday morning before he went golfing on 20 December 2003.  Again, he kept that all to himself for a week without telling his wife.  On his evidence, the golf club was a pitching iron worth $20,000.  That was a very expensive pitching iron.  I would consider a pitching iron of $2,000 on the high end.  If he found it missing on the Friday night when he checked his golf pack, one would expect him to make immediate enquires from Ms Aquino who was responsible for cleaning it or from his daughters and wife whether they had misplaced it or otherwise knew where it was.  If he found it missing on the Saturday morning before he went golfing, it is surprising that he would just go golfing without it and without even asking Ms Aquino or make enquiries afterwards.  It is also incredible that when such an expensive item of property went missing from the home, he would keep it all to himself and make no noise about it, if not for any purpose at least to warn the family members to be cautious about their valuables.  His conduct is inexplicable.  I find such evidence incapable of belief.  I reject his evidence.  I find his allegation about the damage to his suit and the loss of his golf club were false allegations against Ms Aquino made for a purpose. 

79.On their evidence, even within their matrimonial home, the husband and wife demonstrated a high degree of differentiation of function as if they were running their offices.  Mr Leung took no interest in the performance of their domestic helper leaving Ms Aquino’s supervision entirely to his wife and did not tell her about the damage to the suit and the hi-fi and the loss of the golf club.  It is surprising that the husband and wife would not discuss anything about the performance of their family domestic helper, especially if the helper was responsible for damage or loss of some very valuable properties.  Ms So knew nothing about these damage and loss before she issued the third warning letter which was in effect a letter of dismissal. It is incredible that Ms So would not have discussed with Mr Leung about Ms Aquino’s dismissal.  Had that been discussed, it is incredible that Mr Leung would not have told Ms So that there were other misconducts committed by Ms Aquino which better justified her summary dismissal, if what he said was true.  Had that been discussed, it is also incredible that Ms So would not have included these serious allegations in the third warning letter rather than quoting some petty mistakes, such as damaging a hinge without informing the employer.  I have no doubt that Mr Leung’s allegation was false.  I find it was an impromptu concoction made on the very morning of 26 December 2003 when he suddenly came up with what he thought to be a better way of getting rid of Ms Aquino. 

80.Ms So’s and Mr Leung’s evidence about the incident on 26 December 2003 were somewhat equivocal and suspicious.  Ms So seemed to dissociate herself from what happened after she explained the contents of the third warning letter to Ms Aquino and said thereafter the matter was handled by Mr Leung and she did not pay attention to their conversation.  Mr Leung said he and Ms Aquino were unable to agree on the amount of terminal payment.  He said that he did not know how much to pay Ms Aquino in view of the damage and loss she caused.  He told her to go to the Labour Department for assistance.  But as a matter of fact, neither Mr Leung nor Ms So had in mind the amount to pay Ms Aquino.  They were intelligent and senior executives.  On their evidence, they had planned Ms Aquino’s dismissal on 26 December 2003.  They purchased two nylon bags for Ms Aquino to pack up her belongings.  Under such circumstances, even assuming that they honestly believed they were entitled to summarily dismiss Ms Aquino without having to pay any wages in lieu of notice, it is incredible that they had taken no steps to purchase a return air ticket for Ms Aquino and ascertain the amount of arrears of wages due to her and the amount they were entitled to deduct from her wages for the damage and loss caused by Ms Aquino so as to give her the terminal payment and get the matter out of their minds.  As shown in Ms So’s letter to the Labour Department, Ms So was able to find out that the amount deductible was $300 per item of property damaged.  I think the only reason that Ms So and Mr Leung did not calculate the amount of terminal payment due to Ms Aquino was that they never intended to pay her anything, not even her arrears of wages and return air ticket to the Philippines, which was their indisputable liability.  They simply wanted to get rid of Ms Aquino without paying anything. 

81.I believe that Mr Leung was the mastermind of this dishonest and impromptu design.  Were Ms So a party to this design at its inception, she would have included the damage and loss of the suit, the hi-fi and the golf club in the third warning letter.  That was why Mr Leung took over the act of dismissing Ms Aquino by telling her that she was dismissed, demanded for the keys, gave her the two nylon bags, told her to pack up and thereafter accused her of the damage and loss and eventually drove her out of the flat.  On the other hand, Ms So shied away after explaining the content of the third warning letter to Ms Aquino and shied away from the conciliation meeting.  Despite Ms So’s attempt to dissociate herself when Mr Leung made the false accusations about the damage and loss of his suit and his golf club, I have no doubt that Mr Leung’s accusations were made with Ms So’s approval and can be treated as being made by Ms So.  

82.To sum up this part of the evidence, I find that Ms Aquino committed the various acts of misconduct alleged in the third warning letter.  She was induced and coerced into signing it by Mr Leung’s promise to pay her wages, wages in lieu of notice and the cost of a return air ticket.  After so obtaining her signature on the third warning letter, Mr Leung turned around and accused Ms Aquino of having damaged his suit and lost his golf club as an excuse for not paying her anything and drove her out of the flat.  I have no doubt that Mr Leung’s accusation of the damage and loss of those very expensive properties was false and made for the purpose of shocking Ms Aquino out of her nerves so that she would leave without being paid anything at all.  I further find that the underlying reason for the false accusation was their greed which they thought they had extra-legal justifications, such as Ms Aquino’s bad performance, the damage she did to their family property and the additional expenses in recruiting a replacement.  Mr Leung’s conduct towards Ms Aquino was extremely oppressive, high-handed and shameful.

The conciliation meeting at the Labour Department on 31 January 2004

83.As a result of Ms Aquino’s claim, a conciliation meeting was held between Ms Aquino and Mr Leung on 31 January 2004.  Ms So summonsed Ms Ma, the conciliation officer of the Labour Department, to give evidence that during the meeting Ms Aquino never complained about discrimination on account of her disability.  But Mr MacKenzie-Ross seized on the opportunity to level severe criticisms against Ms Ma of unfairness, for siding with Mr Leung and for perpetrating injustice.  In my view, whatever happened during the conciliation meeting is of no assistance to Ms Aquino’s claim.  Mr Leung’s conduct at the meeting could not be discrimination in the context of employer-employee relationship as the employment was terminated, while Ms Ma is not a party to the proceedings.  Labouring on those criticisms of the conciliation meeting only unnecessarily protracted the proceedings and caused further damage to the credibility of Ms Aquino and Mr Leung; but both of them have no credibility at all anyway.  I shall briefly deal with those criticisms and then the more important issues about Ms Aquino’s failure to complain at the meeting that the cause of her dismissal was not related to her misconduct but to her disability and her failure to complain about the fines.

84.Ms Aquino’s claim was for arrears of wages, wages in lieu of notice and travelling allowance in the amount of $4,508, $3,300 and $100 respectively and a return air ticket.  On 14 January 2004, Ms Ma received a letter from Ms So explaining the reasons for Ms Aquino’s dismissal and enclosing copies of the three warning letters signed by Ms Aquino.  Ms So offered $3,100 in settlement which included 28 days’ arrears of wages, two days’ annual leave pay and the cost of a return air ticket to the Philippines less $1,200 as compensation for four items of damaged property.  The four items of property were Mr Leung’s suit worth $6,000, the golf club worth $20,000, the sweater and the hi-fi.  This was the first time when the damage to the tuning knob of the hi-fi was mentioned.  In his evidence, Mr Leung said he never informed Ms So of the damage prior to Ms Aquino’s dismissal and hence Ms So had no knowledge about this and did not mention it in the third warning letter.  For similar reasons as I have found in respect of his accusations about the suit and golf club, his allegation about the damage to the tuning knob is just as incredible.  Given the very unfavourable view I formed of Mr Leung’s credibility, I have no doubt it was another of his false accusations made to increase the amount he could deduct from Ms Aquino’s claim.  I find that only the claim to the damaged sweater was genuine. 

85.Mr Leung attended the conciliation meeting on behalf of Ms So.  Ms Aquino was accompanied by a friend, but Mr Leung objected to her friend’s presence at the meeting.   With the consent of Ms Aquino, the meeting was conducted between herself and Mr Leung with Ms Ma as the conciliator.  Ms Ma explained the relevant provisions of the Employment Ordinance on wage deduction and summary dismissal to both parties.  Mr Leung referred to the three warning letters and elaborated on the reasons for Ms Aquino’s dismissal.  He produced a suit allegedly damaged by Ms Aquino as evidence.  He stressed that the summary dismissal was justified and refused to pay one month wages in lieu of notice.  He was willing to pay Ms Aquino the arrears of wages, the travel allowance and the cost of the air ticket after deducting $1,200 as compensation for four items of property damaged by her.  Despite Ms Ma’s explanation that in accordance with section 32(2)(b) of the Employment Ordinance, an employer could only deduct $300 for each item of property damaged and that the total monthly deduction shall not exceed one quarter of the wages payable to the employee, Mr Leung intimated that if Ms Aquino insisted to claim for a month’s wages in lieu of notice, he would file a civil claim against Ms Aquino for the full cost of all properties allegedly damaged by Ms Aquino, which was about $30,000.  Ms Aquino admitted that she committed some of the mistakes but denied she wilfully damaged the properties.  She suggested to settle the claim by accepting Mr Leung’s offer of $3,500 plus a good release letter.  Mr Leung refused to write a good release letter but agreed to write a letter mentioning nothing but the period of her employment with Ms So.  Eventually, Ms Aquino abandoned her claim for wages in lieu of notice, accepted the deduction and accepted $3,500 and the release letter from Mr Leung as full and final settlement of her claim and signed a settlement memorandum.  She also signed a receipt for the $3,500 she received from Mr Leung.  After Ms Ma had explained to her the meaning of the receipt, Ms Aquino wrote down a note on the receipt to the effect that she fully understood the meaning of the receipt and agreed to cancel her claim.  Throughout the meeting, Ms Aquino did not mention anything about the fines or the lunch on 19 October 2003 or complain that she was dismissed because of her disability.  Ms Ma was very sure about this because she did not even notice Ms Aquino’s deformity herself.

86.It should be recalled that in her second letter to the Labour Department and Immigration Department, Ms Aquino listed out the fines she was made to pay to Ms So and the outstanding reimbursements.  Despite Ms Aquino had lodged a claim with the Labour Relations Division of the Labour Department, she did not addressed the letter specifically to the Labour Relations Division which was handling her claim.  As a result, the letter was handled by another division of the Labour Department and Ms Ma had no knowledge of that letter.  Mr MacKenzie-Ross levelled criticism at Ms Ma and the Labour Department and complained that Ms Aquino could have no knowledge that Ms Ma had not received her complaint about the fines. While it was true that Ms Ma had no knowledge of the allegation about the fines, the criticisms were unjustified.  Ms Aquino only had herself to blame for not directing the letter to the Labour Relations Division and quoting her claim form number for reference.  She also had herself to blame for not raising these matters at the conciliation meeting.

87.Ms Aquino complained that Ms Ma sided with Mr Leung and accepted Mr Leung’s allegation because of the three warning letters.  She said she was not allowed to speak at the meeting.  This was denied by Ms Ma who said that she was aware from her experience that some of these warning letters were fabrications.  In her third letter to the Labour Department, Ms Aquino complained that Ms Ma did not allow her to explain and that Ms Ma and Mr Leung scared her.  She repeated that allegation under cross-examination.  In view of my overall assessment of her credibility, I reject her evidence.

88.Mr MacKenzie-Ross launched serious criticisms against Ms Ma for not being impartial.  He criticised her for allowing Mr Leung to represent Ms So and for keeping Ms Aquino’s friend out of the meeting.  I do not think such criticisms were justified.  As long as the meeting was fairly conducted, there was no reason why the husband who was conversant about the dismissal and was authorised by his wife could not represent his wife at the meeting, if the other party did not object.  On the other hand, as conciliation is a matter for the parties, it was Mr Leung’s right not to participate in the conciliation meeting in the presence of a third party other than the conciliation officer.  If the parties could not agree to their representation at the meeting, they were free to abandon conciliation and elect for adjudication by the Labour Tribunal.  It was Ms Aquino’s free choice to attend the conciliation meeting with Mr Leung and in the absence of her friend.  She cannot have any complaint if the conciliation meeting was otherwise fair and regular.

89.Mr MacKenzie-Ross complained that there were occasions when Ms Ma and Mr Leung communicated in Cantonese without explaining the content of their conversation to Ms Aquino.  He also complained that Ms Aquino was not fluent in English and by excluding her friend from the meeting, Ms Aquino did not fully appreciate what was going on at the meeting.  Ms Ma said she had interpreted what was said by Mr Leung in Cantonese to Ms Aquino but frankly admitted that there might be occasions when Mr Leung conversed with her in Cantonese which she might not have interpreted to Ms Aquino.  This is a usual problem which any bilingual officer conducting a meeting with parties who speak different languages would face.  Ms Ma was satisfied that Ms Aquino was fluent in English.  She considered Ms Aquino was able to communicate in English.  I have no doubt about the honesty of Ms Ma and her impartiality.  There were occasions in Court when Ms Aquino spoke in English in her evidence.  I noted that she was fluent, though her written English was not.  Ms Ma gave a logical account of the meeting.  If there were any indications that Ms Aquino did not understand what was going on at the meeting, Ms Ma would have noticed it and rendered assistance.  I have no doubt about Ms Ma’s evidence.  I am satisfied that Ms Aquino appreciated fully what was going on at the meeting. If Ms Ma failed to interpret anything said in Cantonese to Ms Aquino, I am satisfied that it was not done deliberately nor was Ms Aquino prejudiced by such failure.

90.Mr MacKenzie-Ross challenged Ms Ma for not having explained the relevant provisions on summary dismissal and wage deduction to Ms Aquino on the basis that she had not recorded her advice in the notes of the meeting.  I consider this allegation frivolous.  Ms Ma is a professional conciliator with three years’ experience in conciliation.  She is knowledgeable about the relevant provision of the Employment Ordinance.  Under cross-examination, she thoroughly demonstrated her knowledge of the Employment Ordinance and its practical application.  It is too much to expect of her that she should record down every piece of advice about the law she gave to the parties and at the same time to take part effectively in the conciliation. 

91.Mr MacKenzie-Ross criticised Ms Ma for allowing Mr Leung to deduct $1,200 for the four items of property damaged or lost by Ms Aquino from the arrears of wages when there was no evidence to make a report to the police.  While I am satisfied that only the allegation about the damage to the sweater was genuine and that the accusation in respect of the other items were false, Ms Ma did not know the truth or falsity of Mr Leung’s allegations.  She had no opportunity or means to investigate, nor was it her duty to.  It was impossible for her during this short conciliation meeting to ascertain the truth from these two dishonest witnesses, one of whom appeared particularly impressive.  She was to conciliate and to explain the law to the parties, which she did.  Whether to agree to the deduction is a matter solely for Ms Aquino.  Given her limited role at the conciliation meeting, Ms Ma could not know whether the deduction was justified, but she was satisfied that with her explanation about the law that Ms Aquino freely agreed to accept the deduction and the settlement.  No blame could be attached to Ms Ma.  

92.Mr MacKenzie-Ross also criticised Ms Ma for allowing Mr Leung to deduct $1,200 from the arrears of wages which was in excess of one quarter of a month’s wages deductible under the Employment Ordinance.  To that Ms Ma replied sensibly that the ceiling of one quarter of a month’s wages applies if the employment is subsisting when the deductions could be carried over from month to month until the full amount of $300 per item deductible is fully recovered by the employer.   However, when the employment is terminated, it would be convenient to have all money deductible settled once and for all rather than for the employer to take out proceedings in the Small Claims Tribunal for the balance not so deducted.  I think this makes practical sense.

93.I am satisfied that Ms Ma conducted the conciliation meeting in a most professional and impartial manner and that Ms Aquino understood what was going on at the meeting despite her handicap in the English language.  I am satisfied that Ms Aquino was not prevented from expressing her views freely at the meeting.  As I say, nothing relevant to Ms Aquino’s claim was achieved with Mr MacKenzie-Ross’ lengthy and vigorous cross-examination and emotional submission of this sort.

94.I now turn to the more important issues raised by the evidence about the conciliation meeting.  It is not disputed that Ms Aquino made no complaint that the true reason of her dismissal was not the misconduct referred to in the three warning letters but was on account of her deformity and that she made no complaint about the fines.  Mr MacKenzie-Ross submitted that the Labour Department was not charged with the authority to handle equal opportunity complaints and it was therefore not reasonable to expect Ms Aquino would raise the issue about discrimination and her disability.  I do not agree with that submission.  Ms Aquino never said so in her evidence.  I do not think she could have appreciated such a fine point of jurisdiction as suggested by Mr MacKenzie-Ross. 

95.Ms Aquino made a claim for wages in lieu of notice.  That must be on the basis that the summary dismissal based on the three warning letters were not justified and that there was another reason which brought about her dismissal.  It was her case in this action that that other reason was her disability.  In the circumstances, it is surprising that she did not bring up this issue when Mr Leung sought to justify before Ms Ma the dismissal on the basis of the three warning letters. She complained about being fined and not paid her reimbursements by Ms So in her two letters of complaint to the Labour Department dated 7 December 2003 and 25 January 2004.   Likewise, it is surprising that she did not bring up these fines and outstanding reimbursement as a set off against Mr Leung’s claim for deduction for the four damaged items.  However, Ms Aquino was an unsophisticated person.  She was no match for the shrewd and dishonest Mr Leung.  Mr Leung shocked her out of her nerves on 26 December 2003 with his false accusations about the suit and the golf club.  Again Mr Leung easily succeeded this time with his threat to bring an action for a $30,000 claim if Ms Aquino should insist on her claim for wages in lieu of notice.  Though Ms Ma had explained that Ms So’s claim was limited to $1,200, I believe Ms Aquino was unable to appreciate that advice because of Mr Leung’s adamant insistence and threat to issue proceedings for a $30,000 claim.  She was faced with a $3,500 worth bird in hand or the prospect of two birds worth $7,908 with an air ticket in the bush but at the risk of a $30,000 claim and of losing her bird in hand.  I can well appreciate the predicament she was facing and understand why she succumbed to Mr Leung’s oppression and accepted the settlement.  Her will was sapped.  But there was no way Ms Ma could know about that.  In the circumstances, as Ms Aquino decided to abandon her claim for wages in lieu of notice, it would be pointless for her to argue that the true reason for her dismissal was her disability.  For the same reason, it would not serve her any purpose to bring up her letters of 7 December 2003 and 25 January 2004 in respect of the fines.  I draw no adverse inference whatever against Ms Aquino for failing to raise the question about her disability, the fines and the outstanding reimbursements at the conciliation meeting.  But I disbelieve her evidence regarding these matters for the other reasons which I have given.

Ms Aquino’s undated letter of complaint to the Labour Department

96.After the conciliation meeting at the Labour Department, Ms Aquino wrote the third letter of complaint to the Labour Department.  The letter was undated.  In essence, she repeated what was said in her letter dated 7 December 2003.  She repeated her complaint about the fines, the incident when she lost the younger daughter in PARKnSHOP, the incident on the day of her dismissal.  In addition, she complained about Ms Ma’s conduct of the conciliation meeting.  She alleged that she was not allowed to speak and was scared by Ms Ma and Mr Leung.  I have rejected this evidence when I considered the evidence of what happened during the conciliation meeting.  She accused Mr Leung and Ms Ma of cheating her $3,500, being a month’s wages in lieu of notice.  I find this allegation groundless.

97.This letter has nothing to add to Ms Aquino’s letter of 7 December 2003 which I have considered.  As for the new allegations against the conduct of the conciliation meeting by Ms Ma, I find that they were untrue and in any event those allegations are not relevant to her claim against Ms So.  If at all this letter serves any purpose, it serves as a previous inconsistent statement showing how readily Ms Aquino changed her evidence.  It should be recalled that it was in this letter that Ms Aquino said that Mr Leung’s suit was ironed by an outside laundry. That was inconsistent with what her counsel put to Mr Leung under cross-examination, i.e. it was Mr Leung who “put the iron on the summer suit.”

determination  of  the  claim

An overall view

98.Having made the above finding of fact, I now turn to consider Ms Aquino’s case on the basis of such of Ms So’s conducts which I am satisfied as having been proved.  I shall consider those conducts in isolation and cumulatively whether they amounted to discriminatory or harassing conducts.  In addition, I shall consider the reason for Ms Aquino’s dismissal.  I bear in mind it is very seldom that direct evidence of the reasons for discriminatory or harassing conduct is available in cases of this kind.  Wherever possible, I shall draw inference from such basic facts that have been proved.

99.The primary and most important building block of Ms Aquino’s case is the reaction of Ms So’s family at the sight of Ms Aquino’s deformed hand during the lunch on 19 October 2003 and Ms So’s demand for her resignation and medical certificate.  A secondary building block is Ms So’s very disparaging and degrading remark made on Christmas Eve about Ms Aquino’s destiny when pointing at Ms Aquino’s deformed hand.  If accepted, these are direct evidence which explain the reason for the torture, abuse, assaults etc which Ms Aquino received from Ms So and her family members.  The inference could then be drawn that these ill-treatment and torture were discriminatory and harassing conducts aimed at forcing Ms Aquino to leave her job.  However, for very compelling reasons, I have rejected all these evidence of Ms Aquino.  Not only do I reject her evidence, I am actually satisfied that these allegations were untrue.  These findings take away much of the colour of what are left of Ms Aquino’s case.  What are left of Ms Aquino’s case are Ms So’s knowledge of Ms Aquino’s deformity, the three warning letters, the house rule requiring Ms Aquino to return home before 9:30 pm on her rest days, the requirement to hang clothes on the drying rack outside the flat, Ms So’s abuse on Christmas Eve and Mr Leung’s extremely oppressive and high-handed conduct in driving Ms Aquino out of the flat on 26 December 2003 without paying her anything and in forcing a settlement at the conciliation meeting in the Labour Department.   There was no direct evidence that Ms So’s and Mr Leung’s conducts were connected to Ms Aquino’s disability and on the facts, I am satisfied that the allegations about Ms Aquino’s misconducts in the three warning letters were true.  Against this setting, I now turn to consider Ms Aquino’s case.

Discrimination and harassment

100.Ms Aquino started her employment with Ms So on 17 October 2003.  She had a smooth start.  She was well treated for the first two days.  Thereafter, her relation with the family deteriorated.  Ms So issued her the first warning letter on 11 November 2003.  By that time, Ms So must have had knowledge of Ms Aquino’s deformity.  Ms So then issued the second warning letter on 2 December 2003 and dismissed her on 26 December 2003 with the issue of the third warning letter. 

101.According to the first warning letter, Ms Aquino failed to pick up the younger daughter twice from ballet class and from school.  These were serious breaches of duty, which any parent would take a serious view.  The other incidents relating to the damage of a ventilator fan, a plate and a bowl, locking up the dog without a key, locking out the family, etc were minor mistakes.  There was also a complaint about Ms Aquino’s personal hygiene.  Probably these mistakes were not deliberately made.  But they point to carelessness and habitual neglect on the part of Ms Aquino.   These were not serious mistakes, some were very trivial and ought reasonably be excused for a new employee, for example, failing to switch off the washing machine.  Buying spoilt fruits at least twice a week was probably not the result of poor judgment but habitual carelessness.  On the whole, these other mistakes were not serious, but Ms Aquino made many mistakes within less than a month and they were annoying.  Ms Aquino was obviously an unsatisfactory performer.  However, the fact that Ms So meticulously took the trouble to record every bowl and plate damaged by Ms Aquino and issued a warning letter for such minor mistakes suggests that Ms So was a very demanding or may even be fault finding, calculating and difficult employer.  But, I do not think Ms So could be unduly criticised for issuing the warning letter for Ms Aquino made a number of mistakes including two serious ones within less than a month of her employment. 

102.It is the employer’s prerogative to warn her employee so that she would not commit the same mistakes again, particularly as regards picking up the younger daughter which must be the top concern in Ms So’s mind.  There was a total absence of evidence that the issue of the first warning letter was connected to Ms Aquino’s disability.  Given Ms So’s character, she would have warned any other domestic helper without disability or without the same disability had that other domestic helper made the same mistakes.  Accordingly, I am unable to find the issue of the first warning letter by itself an act of discrimination.  Likewise, the warning letter was clearly not on account of Ms Aquino’s disability.  A reasonable person having regard to all the circumstances, including the seriousness of the mistakes Ms Aquino made, would not find the warning letter offending, humiliating or intimidating.  Accordingly, the issue of the first warning letter did not amount to a harassing conduct.

103.Ms Aquino’s performance did not improve.  Three weeks later Ms So issued her a second warning letter on 2 December 2003.  Her mistakes were for buying unwholesome food for the family, absent-mindedness, failing to go to the supermarket, failing to clean up dog droppings, using the master bedroom toilet, repeatedly failing to turn off the water heater and to close the door of the refrigerator.  There were other complaints about her personal hygiene. 

104.Though the mistakes were not as serious as those in the first warning letter, Ms Aquino made no improvement despite the earlier warning.  By then, it was the sixth week of her employment.  I do not think Ms So could be criticised for issuing the second warning letter.  On the basis of my finding that the mistakes were indeed made, for similar reasons as with my finding in respect of the first warning letter, I do not consider the issue of the second warning letter an act of discrimination or harassment.

105.Just three days after receipt of the second warning letter, Ms Aquino made another serious mistake by losing the younger daughter when she took the daughter out for shopping in the supermarket on 5 December 2003.  Though the supermarket was close to home and it was the younger daughter who suggested to part company, Ms Aquino should not have given in to the wish of the daughter and let her go.  She was entrusted with the duty of looking after the daughter and she took her out to the supermarket.  It was her duty to look after the daughter’s safety, including to protect the daughter from herself and her frolics.  The daughter might meet with undesirable elements in the shopping centre or might wander off into the road and meet with an accident.  I consider what Ms Aquino did, even on her own account, was a serious breach of duty, which any parent would take a very serious view.  This was the third serious mistake of a similar nature as her failure to pick up the daughter from school or ballet class, for which she had been warned.

106.Then came the incident on 24 December 2003 when Ms So scolded and abused Ms Aquino for some trivial mistakes and accused her of being a thief and of stealing her laundry net, mobile phone charger, cosmetics etc.  The scolding was repeated and unnecessarily severe.  The allegations of theft were wholly unfounded.  Ms So explained that she lost her temper at the sight of the state of the kitchen, with Ms Aquino making a hole in the cupboard, leaving the ventilator fan on, the clothes hanging in the kitchen and her laundry net being used for washing Ms Aquino’s underwear.  However, as a matter of law, her intention or motive was not a necessary condition to liability and her mistake of the law was no excuse.  I think Ms So was very mean in demanding Ms Aquino to buy her a new laundry net, which was worth about $5 only and very abusive in scolding Ms Aquino for using her mobile phone charger.  Any reasonable employer would have given the net away to the domestic helper and told her in strong terms that she shall never use her employer’s net again.  Likewise, any reasonable employer would not have minded her domestic helper use her charger.  Ms So’s remark about Ms Aquino’s destiny was abusive, but in the context in which it was passed and without pointing at Ms Aquino’s hand, the remark was clearly not referable to Ms Aquino’s deformity.  However much I disapprove of Ms So’s conduct, there was nothing to suggest that the abusive acts were connected to Ms Aquino’s disability, nor can any inference that they were be drawn.  The abusive acts were not discriminatory. While I have no doubt that the accusations were unwelcome and any person to whom those accusations were directed must feel offended, humiliated or intimidated, the accusations were not on account of Ms Aquino’s disability.  I cannot draw any inference that they were.  The abusive acts do not constitute harassment.

107.In connection with Ms Aquino’s hanging clothes in the kitchen, Mr MacKenzie-Ross criticised Ms So for not making allowance for Ms Aquino’s disability by requiring her to hang clothes on the drying rack.  Presumably, he was relying on that instruction as an act of indirect discrimination under section 6(b) of Disability Discrimination Ordinance.  Hanging clothes on the drying rack was not a difficult operation as the drying rack was so designed in such a way that the user only had to clip the clothes to be dried on the drying line near the window which could be pulled away from the window so that another piece of clothing could be hung.  There is nothing to suggest that the proportion of persons with a disability who can perform this task is considerably smaller than the proportion of persons without a disability who can perform it.  Indeed, it never was Ms Aquino’s case that she could not perform her duty competently because of her deformity.  She only chose not to follow her employer’s instruction probably because it was too tedious, not because it was impossible.  In addition, there were ample reasons why Ms So prohibited hanging clothes in the kitchen as it was greasy and unhygienic.  Certainly, an employer would not like wearing clothes at his place of work, which smelt strongly of cooking.  An employer is entitled to require how work is to be done, so long as the instruction is reasonable.  It is not for the employee to dictate her will on her employer.  Mr MacKenzie-Ross’ criticism is utterly groundless.  This is probably another point raised by counsel as Ms Aquino never said she was unable to hang clothes on the drying rack.  I consider the instruction reasonable, justified and not detrimental to Ms Aquino as she could comply with the requirement.  The instruction was neither discriminatory nor harassing. 

108.On 26 December 2003, Ms So issued the third warning letter to Ms Aquino and dismissed her summarily.  The mistakes alleged in the warning letter were losing the younger daughter on 5 December 2003, damaging Mr Leung’s sweater and a hinge, giving the younger daughter Ms Aquino’s left-over meal and enticing her to drink coffee.  I am satisfied that Ms Aquino made the mistakes alleged.  Then Mr Leung falsely accused Ms Aquino of having damaged his suit and lost his golf club.  With that excuse, Mr Leung and Ms So refused to pay Ms Aquino her wages and drove her out of their flat.

109.I have analysed the incident on 5 December 2003.  Even on Ms Aquino’s evidence, it was a serious misconduct to have parted company with the younger daughter in the circumstances.  It was the third serious misconduct of a similar nature.  This incident alone would justify the issue of the warning letter and summary dismissal because of its repetition (see paragraphs 43 to 45).  Damaging a hinge was a very trivial matter and may not be entirely due to Ms Aquino’s neglect.  But Ms Aquino also damaged an expensive sweater by washing it contrary to Ms So’s instruction to have the sweater taken out for dry cleaning.  This was a clear case of neglect.  Ms Aquino’s reheating her own left-over food as meal for the younger daughter was an unpleasant act.  On the whole, I find the allegations contained in the third warning letter were true and Ms So was justified in issuing the third warning letter so far as the allegations of misconduct were concerned. I shall deal separately with the question of dismissal.  As Mr MacKenzie-Ross rightly pointed out, the letter was not really a warning letter in the sense that no opportunity was given to Ms Aquino to correct her mistakes.  It was a letter of termination stating some of Ms Aquino’s recent misconducts as the immediate cause of the dismissal.  For similar reasons as with my finding in respect of the first and second warning letter, I do not consider the issue of the third warning letter, so far as the allegations of misconduct was concerned, an act of discrimination or harassment.

110.As for the house rule requiring Ms Aquino to return home before 9:30 pm on her rest days, I find the rule reasonable.  It was not connected to or on account of Ms Aquino’s disability.  Ms So would have applied that rule to any domestic helper.  It was not an act of discrimination or harassment.

Mr Leung’s conduct on 26 December 2003 and at the conciliation meeting

111.I strongly reproach Mr Leung for making false accusations against Ms Aquino for damaging his suit and losing his golf club and driving her out of the flat without paying her due.  I condemn such conduct as shameful.  It is unthinkable that a man of his education, background, means and wealth would make up such a nasty excuse to deprive his employee not only of her disputable right to wages in lieu of notice but also her indisputable right to her hard earned arrears of wages and contractual right to a return air ticket.  He persisted with such shameful course of conduct at the conciliation meeting in the Labour Department and added on an additional accusation about the damage to the tuning knob of his hi-fi, which I also find was false.  In an extremely high-handed and oppressive manner, he demanded a deduction of $900 from Ms Aquino’s arrears of wages for three fictitious claims for damage to his property.  He threatened to issue proceedings against Ms Aquino if she did not abandon her claim for a month’s wages in lieu of notice, when he had been explained and knew that he had no legal basis to do so by virtue of section 32(2)(b) of the Employment Ordinance.  Such dishonest and shameful conduct has crossed far beyond any border of human decency.

112.But however much I condemn and reproach him for his shameful conduct, which I consider to be attributable to Ms So as his principal, there is no direct evidence to connect that conduct to Ms Aquino’s disability.  Though I find that Ms So and Mr Leung were concealing their knowledge about Ms Aquino’s deformity, I cannot draw from their lie and from the totality of the evidence that the false accusations were connected to Ms Aquino’s deformity.  As I have found, the motive for their shameful conduct was their greed and the reason was they thought they had extra-legal justification not to pay Ms Aquino because of her bad performance, the damage she did to their family property and the additional expenses in hiring a replacement.  Applying the “but for” test, I am unable to find that the accusations and oppressive conduct would not have been made but for Ms Aquino’s disability.  Besides, Mr Leung’s conduct arose after Ms Aquino’s employment has been terminated.  Accordingly, I am unable to find Mr Leung’s conduct was an act of discrimination or harassment. 

Reasons for the dismissal

113.I now turn to examine the reasons for Ms Aquino’s dismissal and whether the dismissal was an act of discrimination or harassment.  Ms So argued that Ms Aquino was dismissed summarily for misconduct and not for her disability.  Mr MacKenzie-Ross submitted otherwise and sought to rely on section 3 of the Disability Discrimination Ordinance.  There is no presumption raised by the fact of dismissal in favour of discrimination or harassment.  The burden of proof was on Ms Aquino.

114.Up until her dismissal, Ms Aquino had worked for a little over two months with the family.  She committed three serious mistakes in failing to take care of the safety of the younger daughter within less than two months.  Her failure to pick up the younger daughter from school after attending the interview at the Immigration Department was particularly serious and indicated a total wanton disregard for the safety of the child put under her care.  Her decision to part company with the younger daughter in the supermarket was an equally serious and irresponsible conduct.  This mistake was committed within 24 days after the first written warning.  Despite the earlier warning, she did not seem to appreciate the importance of the safety of the child put under her care and the risk her breach of duty could result.  Such breach of duty could lead to serious consequences.  Ms So and her husband had to go to work during the day.  They depended heavily on their domestic helper to look after their children, particularly the younger daughter who was then aged ten.  I find that this misconduct alone is sufficient to justify Ms Aquino’s summary dismissal on 5 December 2003.  But Ms So did not elect to dismiss Ms Aquino forthwith or within a short time thereafter.  She continued with her employment for 21 days, though the decision had been made prior to 24 December 2003 to dismiss her after Christmas Day.

115.Mr MacKenzie-Ross submitted that under those circumstances, Ms So was taken to have condoned Ms Aquino’s misconducts and lost her right to summarily dismiss her on 26 December 2003.  In an action for breach of contract, the innocent party’s delay in accepting a repudiatory breach may be taken as his affirmation of the contract as performed by the party in breach and the innocent party loses his right of action.  However, the issue in such a case is whether the contract has been affirmed.  But, in an action for discrimination under the Disability Discrimination Ordinance based on dismissal, the issue is what was the reason for the dismissal, i.e. whether it was connected to the disability of the employee.  The two issues are wholly different.  Thus, even assuming that an employer is taken to have condoned the misconduct of his employee and lost his right in law to summarily dismiss him, that misconduct never ceases to be a reason which explains why the employer dismissed the employee.  In an appropriate case, the reason may be so strong and valid that it rebuts or negatives any inference that the dismissal was connected to the disability of the employee dismissed.  Of course, if the employer has not lost his right to summarily dismiss the employee by reason of his misconduct, that is a complete defence to an action for discrimination based on the dismissal.  In the paragraphs that follow, I shall consider the issue of summary dismissal, condonation and the reason for the dismissal.

116.Whether Ms So is taken to have condoned the mistakes and lost her right to summarily dismiss Ms Aquino on 26 December 2003 depends on all the circumstances of the case.  The question is whether she is taken to have affirmed the contract the way it was performed by Ms Aquino.  The test is an objective one.  Dismissing a domestic helper is different from dismissing a factory worker.  Factory workers, be they skilled or unskilled, are less difficult to replace.  Furthermore, the work of the dismissed worker can be conveniently covered by other workers, especially in a large establishment.  The situation with a domestic helper is different.  This is particularly so if the domestic helper is the only helper in the family and there are young children or aged members of the family to be looked after.  Before summarily dismissing a domestic helper, an employer has to take steps to find a suitable replacement and/or wait until it is convenient to do so, for example until long holidays so that alternative arrangements can be made for taking care of the young and the aged.  Though Ms So did not say so in her evidence, this could be readily inferred from the circumstances.  In the instant case, I do not think three weeks was an unduly long time such that Ms So may be taken to have condoned Ms Aquino’s misconduct.   In addition, during the intervening period, Ms So had been reproaching Ms Aquino for her repeated mistakes.  Thus, Ms So could not be taken to have affirmed the contract of employment with Ms Aquino. 

117.Even if Ms So is taken to have condoned Ms Aquino’s mistake on 5 December 2003 and lost her right to rely on that misconduct as a reason for summarily dismissing Ms Aquino, Ms So is nevertheless entitled to dismiss Ms Aquino on the ground of Ms Aquino’s habitual neglect and general unsatisfactory performance.  Ms Aquino committed numerous mistakes which led to the issue of the first two warning letters.  Some of the mistakes were petty mistakes and could reasonably have been condoned in the case of a new employee.  Most of the mistakes were habitual neglects, such as damaging the family property, locking out the family, failing to turn off the washing machine, the ventilator fan and the water heater and general absentmindedness.  These mistakes were not particularly serious, but were repeatedly made and annoying.  These repeated mistakes and habitual neglects show that Ms Aquino was an under-performer who did not put her mind to her work and had no determination to bring herself up to the standard required of her by her employer.  Some mistakes were ignoring instructions, such as refusing to reheat meal and cooking instant noodle for the younger daughter and hanging clothes in the kitchen.  These acts show that Ms Aquino deliberately ignored Ms So’s instructions in order to avoid work.  She performed her work the way she preferred to have it done for her own convenience and not the way her employer wanted it to be done.  Other mistakes were unpleasant mistakes, such as reheating her own left-over food as meal for the younger daughter and her neglect over her personal hygiene.  Despite the issue of the first two warning letters, Ms Aquino repeated similar mistakes of habitual neglect.  She caused damage to an expensive sweater by neglecting Ms So’s instruction.  She ignored her employer’s instructions and performed work the way she wanted.  She did not consider she was bound by the terms of her contract of employment.  I consider the cumulative effect of all these mistakes and her repetition of these mistakes despite warning amounted to a repudiation of her obligation under her contract of employment which justified her summary dismissal.  That provides a complete defence to Ms Aquino’s claim.

118.Even if the above mistakes were insufficient to justify Ms Aquino’s summary dismissal, they explain that the true reason for the dismissal was Ms Aquino’s unsatisfactory performance and that reason was not connected to her disability.  Furthermore, a domestic helper is different from other kinds of employees in one important respect.  She assumes a position as part of the household if not part of the family.  She lives with the family, prepares their meal, looks after the children and takes them to school etc.  Some helpers have meal with the family together and may even share in their joy and sorrow.  She maintains continuous contact with the family almost round the clock.  Thus, there is a much stronger personal element in the employer-employee relationship between an employer and his domestic helper than in most other kinds of employment relationship.  This has not been pleaded by Ms So nor has she mentioned this in her evidence.  But such consideration makes it easy for me to accept Ms So’s evidence that she found Ms Aquino’s performance unacceptable.  In the light of Ms Aquino’s poor performance, her failure to improve despite two written warnings and her conduct, I do not think any reasonable employer could have countenanced Ms Aquino’s continued employment in a position with such a strong personal element.  I find there is every reason for Ms So to put an end to their employment relationship.  In the circumstances, I have no doubt that Ms So dismissed Ms Aquino because of her unsatisfactory performance and that Ms So could not put up with Ms Aquino.  In the light of the totality of evidence, I am quite unable to draw the inference from Ms So’s concealment of her knowledge of Ms Aquino’s disability that Ms Aquino’s disability was a parallel reason for her dismissal.  In the circumstances, Ms Aquino has quite failed to discharge her burden of proving that her dismissal, even if not justified, was connected to her disability.

Conclusion

119.In conclusion, Ms Aquino has utterly failed to prove her case the way it was opened by her counsel.  She has failed to prove the two important building blocks on which her case was based, namely the lunch on her third day of work and Ms So’s disparaging and degrading remark about her deformity.  She has failed to prove the ill-treatment and torture she allegedly suffered at the hands of Ms So and her family.  It is true that she had been subjected to some verbal abuse by Ms So on Christmas Eve and to some very oppressive conduct of Mr Leung at and after the time of her dismissal, but those conducts were not connected to or on account of her disability.

120.On the other hand, Ms Aquino committed three serious acts of misconduct in failing to properly take care of the younger daughter which her employer took a very serious view and understandably so.  In addition, she made many habitual mistakes.  She was an under performer.  Her summary dismissal was fully justified in the circumstances.  That provided a complete defence to her claim for discrimination based on dismissal.  Even if not, I am satisfied that the reason for her dismissal was her unsatisfactory performance.  She failed to meet the requirement reasonably expected of her.  Her dismissal was not connected to or on account of her disability.

121.The work requirement, the house rule, the warning letters, the dismissal and the abuse and the oppression which Ms Aquino had been subjected to, whether considered in isolation or together, were not connected to or on account of Ms Aquino’s disability, nor can I draw any inference that they were.  Thus, even after taking all the conducts of Ms So including those of Mr Leung which were attributed to her and the dismissal together, I am quite unable to find that their conducts were discriminatory or harassing.  For the above reasons, Ms Aquino has utterly failed to discharge her burden of proof.  In the circumstances, it is unnecessary for me to consider her application to amend her statement of claim to include a claim for damages for harassment.  Ms Aquino’s claim must be dismissed. 

122.I think this is a case in which it is justified to deprive Ms So of her costs despite she was successful in her defence.  Her abusive conduct towards Ms Aquino on 24 December 2003 as well as Mr Leung’s very shameful conduct on 26 December 2003 have put litigation on herself.  Accordingly, I dismiss Ms Aquino’s action with a costs order nisi that there be no order as to costs.

Mr David MacKenzie-Ross instructed by Messrs Massie & Clement for the Claimant

Respondent in person