Lam Wing Lai v. Y T Cheng (Chingtai) Ltd

DCEO 6/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 6 OF 2004

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BETWEEN

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Coram : Her Honour Judge H.C. Wong in Court

Dates of Hearing : 19^th , 20^th , 23^rd – 25^th , 27^th May 2005

Date of Handing Down Judgment :  23^rd December 2005

JUDGMENT

1.The Defendant is a company incorporated in Hong Kong carrying on the business of trading in industrial raw materials.  The Plaintiff was an employee of the Defendant between 21^st May 2001 and 11^th November 2002.  She was employed as the secretary to the Director at a monthly salary of HK$15,000.

2.In this action, the Plaintiff claims she was dismissed because of discrimination due to her pregnancy and family status and she was further discriminated by way of victimization.  The Plaintiff claims against the Defendant for damages under Section 76(3A)(e) of the Sex Discrimination Ordinance (SDO) and/or Section 54(A)(e) of the Family Status Discrimination Ordinance (FSDO) and asks for a declaration pursuant to Section 73 (3A)(a) of the Sex Discrimination Ordinance and/or Section 54(4)(a) of the Family Status Discrimination Ordinance.

3.The Plaintiff claims that the Defendant committed the following unlawful acts causing her to suffer loss and damages.

(a)	Unlawful pregnancy discrimination under Section 8A and Section 11(2C) of the Sex Discrimination Ordinance and/or
(b)	Unlawful family status discrimination under Section 5(a) and Section 8(2C) of the Family Status Discrimination Ordinance;
(c)	Unlawful discrimination by way of victimization under Section 9(1)(d) and Section 11(2)(c) of the SDO and Section 6(1)(d) and Section 8(2)(c) of the FSDO.

The Relevant Provisions of the Legislation

4.The relevant provisions of the SDO are as follows:

“8.	Discrimination against pregnant women in employment field
A person discriminates against a woman in any circumstances relevant for the purpose of any provision of Part III or IV if –
	(a)	on the ground of her pregnancy he treats her less favourably than he treats or would treat a person who is not pregnant;
9.	Discrimination by way of victimisation
(1)	A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Ordinance if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised or any other person (“the third person”) has –
	(d)	alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Ordinance, or by reason that the discriminator knows the person victimised or the third person, as the case may be, intends to do any of those things, or suspects the person victimised or the third person, as the case may be, has done, or intends to do, any of them.
(2)	Subsection (1) shall not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.
11.	Discrimination against applicants and employees
(2)	It is unlawful for a person, in the case of a woman employed by him at an establishment in Hong Kong, to discriminate against her –
	(a)	in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them;
	(b)	in the terms of employment he affords her; or
	(c)	by dismissing her, or subjecting her to any other detriment.”

5.The relevant provisions under the FSDO are as follows:-

“5.	Discrimination against a person who has family status
A person discriminates against a person who has family status in any circumstances relevant for the purposes of any provision of this Ordinance if –
	(a)	on the ground of the second-mentioned person’s family status or that person’s particular family status (“the relevant family status”) he treats that person less favourably that he treats or would treat another person who does not have family status or the relevant family status, as the case may be;
6.	Discrimination by way of victimisation
(1)	A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Ordinance if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised or any other person (“the third person”) has –
	(d)	alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to contravention of this Ordinance, or by reason that the discriminator knows the person victimised or the third person, as the case may be, intends to do any of those things, or suspects the persons victimised or the third person, as the case may be, has done, or intends to do, any of them.
(2)	Subsection (1) does not apply to the treatment of a person by reason of any allegation made by him if the allegation was false and not make in good faith.
8.	Discrimination against applicants and employees
(2)	It is unlawful for the employer, in the case of a person who has family status employed by him at an establishment in Hong Kong, to discriminate against that person –
	(a)	in the way he affords that person access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them;
	(b)	in the terms of employment he affords that person; or
	(c)	by dismissing that person or subjecting him to any other detriment.”

6.In order to show pregnancy discrimination, the Plaintiff has to show she was treated less favourably by being dismissed because of her pregnancy when compared to an employee who is not pregnant.  Under family status discrimination, the Plaintiff has to show that she was treated less favourably by being dismissed on the ground of her family status compared to an employee who did not have such a family status.  For discrimination by way of victimization the Plaintiff has to show that she was treated less favourably by being dismissed by reason that the Plaintiff has alleged that the Defendant had committed an unlawful act under the SDO or the FSDO.

The Plaintiff’s case

7.Miss Lam was employed on 21^st May 2001 as the secretary to the director.  Her monthly salary was $15,000.  Her duties were to provide secretarial support to Mr. Herman Cheng, chairman of the Defendant’s Board of Directors.  She was required further to work for other directors of the Defendant including the vice chairman of the Board, Mr. Terrence Cheng, brother to the Chairman and Ms. Debbie Cheng, sister to the chairman who was the managing director.

8.It is not disputed that Miss Lam was an experienced secretary who had been working as a secretary in various trading firms since 1993.  She obtained a certificate in business management in the year 2000 from the Hong Kong Baptist University, and a diploma on the same subject in 2001.  It is not disputed that Miss Lam was able to carry out her duties and on 21^st August 2001, she passed the probation period and her salary was increased to $15,800 a month.  She fostered a good relationship with her bosses and she was able to get along with other members of staff in the office of the Defendant.

9.The only complaint that the Defendant had of the Plaintiff during this period was she had refused to use the internet banking facility.  Miss Lam claimed the internet banking facilities of the Defendant’s bank was not user-friendly.  Miss Lam denied she was ever rude to Mr. Herman Cheng and Mr. Terrence Cheng, she claimed they appreciated her work at the Defendant company.  It is her case that trouble only started after her employers discovered she was pregnant.  Because her pregnancy was not a smooth one she had initially only informed Miss Debbie Cheng who was in charge of human resources and a colleague Wong Wai Sim.  Later, her pregnancy was made known to other staff in the Defendant’s office.  In early February 2002, Miss Lam suffered a threatened abortion, consequently, she informed her boss Mr. Herman Cheng about her condition and informed him she would be on sick leave from on 4 to 6 February 2002.

10.Miss Lam claimed that at the time, she was not required to submit formal notice of pregnancy and her expected date of confinement.  That it was understood that she would be taking maternity leave in due course and she would at the appropriate time inform the Defendant her date of confinement.  Miss Lam claimed that at a conversation with Mr. Terrence Cheng in May 2002 she had informed Mr. Terrence Cheng her expected date of confinement would be in September 2002 and they had a discussion about the time she would be taking her maternity leave and annual leave.  During that conversation, she told him that she hoped to commence her maternity leave two weeks before the expected date of confinement and after the birth, she would be taking 8 weeks of maternity leave.  Mr. Cheng informed her that he preferred her to take 4 weeks before the expected date of confinement and 6 weeks after the birth of the child.  It is Miss Lam’s evidence that she understood these matters would be finalized at a later date.  She regarded the conversation she had with Mr. Cheng only a friendly casual chat.

11.It is Miss Lam’s evidence that, after April 2002, and Mr. Kim Fung, the Finance and Administrator Manager, took over the responsibility for human resources from Miss Debbie Cheng.  In or about May 2002, Miss Lam suggested to Mr. Fung that the Defendant should hire a temporary secretary in August to stand in for her during her maternity leave.

12.On 23^rd June 2002 Miss Lam was admitted into Queen Mary Hospital for placenta praevia (low lying placenta).  She was discharged on 2^nd July 2002 only to be admitted again on 10^th July 2002.  She was discharged two days later on 12^th July 2002.  Upon her discharge and report for duty, she submitted to the Defendant on 15^th July 2002 the medical certificates in support of sick leave for the period between 23^rd June and 13^th July 2002.

13.Miss Lam also claimed that whilst she was in hospital Miss Wong Wai Sim came to visit her on or about 27^th June 2002, she was informed that Miss Lam would be in hospital for much of the time before confinement and Miss Lam had told Miss Wong to inform Mr. Kim Fung to hire a temporary secretary as soon as possible.  However, upon her return to work on 15^th July 2002, she discovered that Mr. Fung had been advertising for a permanent secretary rather than a temporary one.  She was worried that a new secretary may be a permanent replacement for her.  However, she was told by Mr. Kim Fung that there was a possibility that a new secretary would work for Mr. Terrence Cheng and Miss Lam would remain with the Defendant working for Mr. Herman Cheng upon her return from maternity leave.

14.Miss Lam was admitted into hospital for the third time on 20^th July 2002, she was discharged on 29^th August 2002 after the birth of her son on 25^th August 2002.  Miss Lam submitted medical certificates for sick leave for the period from 20^th July to 29^th August 2002, produced a birth certificate of her son on 25^th August 2002 and various certificates to the Defendant upon her return to work on the expiry of her maternity leave on 4^th November 2002.

15.Miss Lam claimed that because her son was born by way of an emergency caesarean section earlier than the expected day of confinement, it was her understanding that she could treat the whole of the period she spent in hospital before her son’s birth as sick leave and therefore commenced her 10 weeks of maternity leave from her son’s date of birth.  Consequently her entitlement of 10 weeks maternity leave would commence in the 10 weeks after the birth of her son and ending on 4^th November 2002.  During the period after her son’s birth, she was anxious that a new permanent secretary would be using her workstation and she should, in order to ensure that her job was secure, returned to work as soon as possible.  Therefore, on 26^th August 2002, the day after the birth of her son, she called up Mr. Fung to inform him that she planned to return to work on 7^th October thereby treating her maternity leave as commencing 4 weeks before the actual date of birth of her son and 6 weeks after the birth of her son and she would return to work on 7^th October 2002.  She was concerned she may be losing her job and worried about the division of work between the new secretary and herself on her return.  She therefore called up Mr. Fung a number of times in September 2002 to find out about the work arrangements after her maternity leave.  She was told by Mr. Fung that she would have to approach Mr. Herman Cheng directly.  Because of the lack of a positive or substantive response Miss Lam became extremely concerned about her job and she suspected the Defendant would not wish to continue to employ her.  In the latter part of September, she asked Mr. Fung directly whether it was the Defendant’s intention not to employ her anymore.  On 23^rd September 2002, Mr. Fung, at Miss Lam’s request to find out from Mr. Cheng, told her that Mr. Herman Cheng did not want to continue to employ her because of her bad health.  She was told Mr. Herman Cheng wanted her to stay home to rest and take care of her son and the Defendant would pay her 7 day’s wages in lieu of notice plus 10 weeks of maternity leave upon her reporting for duty on 7^th October 2002.

16.After she learned of her position with the Defendant, she decided to make enquiries from the Labour Department.  On 25^th September 2002, she understood from an officer of the Labour Department that an employee dismissed before her return to maternity leave was entitled to be paid wages in lieu of notice and 10 weeks of maternity leave plus a further sum equivalent to one month’s wage.  She then called up Mr. Fung and informed him that she would be entitled to a further sum of one month’s salary in addition to the notice in lieu and maternity leave pay.  Mr. Fung did not agree with her demand.  Miss Lam requested Mr. Fung as the human resources officer to clarify the matter on her behalf from Mr. Herman Cheng.

17.Later on, Mr. Fung informed her after speaking to Mr. Herman Cheng that her termination was not an official one.  She was told to return to work after the expiry of the maternity leave.  Mr. Fung further informed her that when he told her about the termination of her employment he was merely telling her privately what might happen.  After the call from Mr. Fung, she checked with the Labour Department and was given to understand that since she had not received any written notice, the termination was not a valid one.  She then called up Mr. Fung and informed him that she would be returning to work.  Knowing her situation would be different upon her return to work and it was likely that she would be dismissed; she decided to take the full advantage of her maternity leave entitlement.  She therefore informed Mr. Fung that she would commence the 10 weeks of maternity leave after the birth of her son and would return to work on 4^th November 2002.  Mr. Fung agreed to this arrangement.

18.On her report to duty on 4^th November 2002, she found she was moved to a new workstation.  She also found that although there was a computer for her use, it was not equipped with any e-mail software and there was no printer or stationery at her new workstation.  Furthermore, she was not given her original duties and her work instructions came from Mr. Kim Fung.

19.She asked Mr. Fung whether the Defendant was going to terminate her employment and his reply was that she should know what was happening.  He further told her that at most she would expect to stay to the end of the week.  She also found that all her colleagues in the office had changed their attitudes towards her, they were no longer friendly and open and were avoiding her.  On the next day, 5^th November, Mr. Fung informed her that if she was willing to hand in her resignation Mr. Terrence Cheng would give her 7 days wages in lieu of notice and a good reference letter.  She refused to resign.  On 11^th November 2002, Mr. Fung told her that she was dismissed.  She asked for the reason and he said the reason was there was a complaint from a customer against her.

20.Miss Lam claimed that she had never complained about her workload.  She admitted that she did have discussion about her workload with all three directors, the two Mr. Chengs and Miss Debbie Cheng, due to the fact that from March 2002 onwards, her workload had increased significantly when she was asked to do the work of the business associates of Mr. Herman and Terrence Cheng.  These included Mr. Lee Chi Kong, Mr. Joseph Kim and Mr. Steve Kim.  She claimed that she discussed the situation of workload with the directors in order to prioritise her different assignments.  She also admitted that she had discussed her workload with other member of staff, but such discussions she claimed was normal at the work place because, at times, she had asked for assistance from her colleagues when her work became too heavy.  However, she denied she was ever unwilling or reluctant to comply with her work instructions from the directors.  She claimed she had a good working relationship with her colleagues at the office and with her bosses.  This changed after she became pregnant.

21.Miss Lam claimed she held Mr. Herman Cheng and Mr. Terrence Cheng in high regard and had always been polite to them.  She denied she had ever thrown files and papers at them or shouted at them.  The reason why the CITIC Ka Wah Bank internet/electronic banking facilities were not adopted was because Mr. Herman Cheng himself decided not to use the facility upon being advised by the technician that there was a security risk in the system.  She admitted that after attending the demonstration session at the bank, she tried to use the facilities but discovered that they were not user-friendly and Mr. Fung had come to the same conclusion. 

22.She also denied that she had been rude to Mr. Lee Chi Kong.  However, she admitted that since he often faxed his drafts to her late in the afternoon, this had disrupted her plans after work.  And on certain occasions, she had to rush to her pre-natal check up appointments because she had to type up Mr. Lee’s documents after office hours.  That was the reason why she explained her difficulties to Mr. Lee and requested him to give her the work as early as possible.  She claimed that she enjoyed working for the Defendant and would have stayed working for the Defendant had the Defendant not discriminated against her and dismissed her.

23.After the dismissal on 11^th November 2002, Miss Lam remained unemployed until she found a new job on 24^th March 2003.  Her salary at her new job is $10,000 a month, $5,800 less than her salary with the Defendant.  Miss Lam also claimed that before she found her new job she was disturbed and was not able to sleep at night because she considered herself being unjustly treated due to her pregnancy and after the birth of her son because she had given birth.  She considered that she had received a hurtful attack on her integrity and professionalism.

24.Miss Lam claims damages under two heads: injury to feelings and lost income.  She also seeks a declaration that the Defendant had committed an unlawful act under the Sex Discrimination Ordinance and the Family Status Discrimination Ordinance by dismissing her pursuant to Section 76(3A)(a) of the Sex Discrimination Ordinance and Section 54(4)(a) of the Family Status Discrimination Ordinance.  Substantive claims were made under pregnancy discrimination, family status discrimination and discrimination by way of victimization both under the SDO and FSDO.

The Defence case

25.It is the Defendant’s case that Miss Lam failed to formally inform the Defendant that she was pregnant.  It was only during social and casual conversation between the staff of the Defendant and Miss Lam that she mentioned her pregnancy in February 2002.  At no time did Miss Lam submit any certificate of pregnancy to the Defendant.  Neither did Miss Lam had at any time submitted or informed the Defendant her expected date of confinement.  Miss Lam further failed to make any work arrangements with Mr. Herman Cheng, Mr. Terrence Cheng or Miss Debbie Cheng in respect of her maternity leave or sick leave.  That it was in or about November 2002 Miss Lam retrospectively submitted medical documents regarding her maternity leave and sick leave for the period of her absence between June and November 2002.

26.It is further the Defendant’s claim that Miss Lam was not dismissed because of her pregnancy nor was she victimized because of it or that she was dismissed due to victimization because of her being a mother of a young child.  It is the Defendant’s case that Miss Lam’s employment was terminated because she had underperformed, her work was substandard and that her attitude was poor and offensive in the office and that she lacked responsibility in the course of her employment.

27.According to the defence case, the fatal act was the fact that Miss Lam had told the staff of a supplier to the Defendant, L G Chemical Hong Kong Limited, Miss Vera Tse, that the Defendant intended to dismiss her during her pregnancy referring to the Defendant as an unscrupulous employer.  The Defendant believed Miss Lam made the remarks to the staff of its supplier maliciously or that it was made out of ulterior motive and that the statement was false.  Consequently, it was this particular act that the Defendant considered Miss Lam’s conduct caused the Defendant to lose the good will of its customers and was detrimental to its reputation.  Because of the aforesaid, the Defendant lost trust in Miss Lam as a secretary to its directors.  Based on the said conduct the Defendant decided to terminate the employment of Miss Lam.

Findings

28.Miss Lam lodged her claims under pregnancy discrimination, family status discrimination and discrimination by way of victimization.  Under pregnancy discrimination Miss Lam has to show that she was treated less favourably by being dismissed on the ground of her pregnancy when compared to a comparator who was not pregnant.  Under family status discrimination Miss Lam has to show that she was treated less favourably by being dismissed on the ground of her family status when compared to a comparator who did not have family status.  For discrimination by way of victimization, Miss Lam has to show she was treated less favourably by being dismissed by reason of the Defendant’s unlawful acts under the SDO or the FSDO.

The telephone conversation between Miss Lam and Mr. Kim Fung on 23^rd and 25^th September 2002.

29.Miss Lam claimed she was informed by Mr. Fung on the telephone that Mr. Herman Cheng no longer wished to employ her anymore because of her poor health that she should stay home to rest and look after her baby.  On the other hand, Mr. Fung denied he had told Miss Lam that Mr. Cheng intended to terminate her employment.  It was Mr. Fung’s evidence that Miss Lam had throughout her sick leave in July, August and September repeatedly called him up and enquired if the company would dismiss her.  He had told her that he had not heard about the company intending to terminate her contract. After the new secretary was hired and in the middle of September, Miss Lam again called him up a few times asking him if the Defendant would terminate her employment.  On 22^nd September 2002 he received a telephone call from Miss Lam, she repeated her query as to whether the Defendant would be terminating her contract of employment.  In spite of the fact that he informed her that he had not heard of any such decision she insisted that he should go and find out from Mr. Cheng on her behalf.  Consequently, on the same day, Mr. Fung repeated Miss Lam’s enquiry to Mr. Herman Cheng and Mr. Terrence Cheng.  Mr. Fung’s claimed Mr. Herman Cheng told him that he had no intention of dismissing Miss Lam and was waiting for her to return from her maternity leave, but because Miss Lam had repeatedly asked if the company would terminate her employment and her reason for so asking was really to stop working in order to look after the baby, the Defendant company would have no choice but respect her wish.  According to Mr. Cheng’s evidence, he had told Mr. Fung to tell Miss Lam the company hoped that she would consider the situation before giving her reply.  Mr. Fung then called up Miss Lam the next day (23^rd September) and asked her to think about her reply repeating to her what Mr. Herman Cheng had said.

30.According to Mr. Fung’s evidence, Miss Lam called him at about noon on 25^th September informing him that she had already consulted the Labour Department, she demanded one month’s salary in lieu of notice of termination and a good reference letter as a condition of her being dismissed otherwise she would make it difficult for the Defendant company because she was in possession of a lot of personal knowledge about her bosses and she would expose matters concerning the company and her bosses.  Mr. Fung considered Miss Lam to be completely unreasonable and told her that the company would not agree to her terms.  After reporting to Mr. Cheng, he was instructed to tell Miss Lam to return to work after the expiry of her maternity leave. 

31.At the end of September, Mr. Fung was informed by Miss Wong Wai Sim that she had received a call from Miss Vera Tse of LG Chemical Hong Kong Limited, who said that Miss Lam had informed her that the Defendant company had unreasonably dismissed her during her maternity leave.  Because of Miss Lam’s accusation that the Defendant was unscrupulous and had informed one of the Defendant’s suppliers that she was dismissed during her pregnancy, Mr. Terrence Cheng and Mr. Herman Cheng were unhappy with the conduct of Miss Lam.  They considered the accusation untrue for the company had not terminated her contract.  They considered she had acted maliciously against the interest of the company.  It was because of this last mentioned act and the dissatisfaction of Miss Lam’s performance and her unreasonable demand on 25^th September that the Defendant decided to terminate Miss Lam’s employment upon her return from maternity leave.

32.On Miss Lam’s return to work on 4^th November she was given a new workstation that was vacant.  On 5^th November, Mr. Fung asked Miss Lam if she was prepared to voluntarily resign from her employment and that the Defendant would agree to give her 7 days’ pay in lieu of notice and a good reference letter.  She turned down the offer.  On 8^th November, Miss Lam made a counter offer asking Mr. Fung to give her one month’s salary in lieu of notice of termination, her request was duly rejected.  On 11^th November Miss Lam was dismissed, she was given 7 days’ pay in lieu of notice.

The Law

33.Section 8 of the Sex Discrimination Ordinance provides that:

“A person discriminates against a woman in any circumstances relevant for the purposes of any provision of Part III or IV if –
(b)	on the ground of her pregnancy he treats her less favourably than he treats or would treat a person who is not pregnant; or

There are two local decided cases on pregnancy discrimination under S.8 SDO, the case of Chang Ying Kwan v Wyeth (HK) Ltd. [2001] 2 HKC p.129 and the case of Yuen Wai Han v South Elderly Affairs Limited [2002] 3 HKLRD 621.  Both cases referred to the “but for” test which was the test applied by the Courts in similar cases in other jurisdictions (see   the House of Lords judgments in R v Birmingham City Council ex p Equal Opportunities Commission [1989] AC 1155 and James v Eastleigh Borough Council [1990] AC 751).  Judge Saunders in the Chang Ying Kwan case further referred to the test applied in cases of victimization including the case of Nagarajan v London Regional Transport [2000] 1 AC 501 and the case of Chief Constable of West Yorkshire Police v Khan [2000] ICR 1065 where it was held the “but for” test required the comparator in the case of pregnancy discrimination to be not another pregnant employee but a normal employee.

34.Section 4 of the SDO provides as follows:

“	(a)	An act is done for two or more reasons; and
	(b)	One of the reasons is the sex, marital status or pregnancy 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 shall be taken to be done for the reason specified in paragraph (b).”

Application of English Law

35.The Hong Kong Legislation in relation to discrimination is model on the equivalent English legislation comprising of the Sex Discrimination Act and the Race Relations Act.  Subsequent to the passing of both the Sex Discrimination Act, and the Race Relations Act, a large body of case law has been formed.  Because of the closeness of the English legislation and the Hong Kong legislation, the Hong Kong Courts may look to the English cases for guidance on the interpretation of the Hong Kong legislation.  They are persuasive authorities in the appropriate cases.  It was on this basis that the Hong Kong cases on pregnancy discrimination were decided.  In the case of Chang Ying Kwan, Judge Saunders set out the basis and extent of the application of the English authorities on the cases in Hong Kong under the SDO and FSDO and the interpretation of the English Courts of equivalent legislation in the UK.

36.On Page 134 of the report he said:

“However, there is no equivalent in the English Legislation to the specific pregnancy provisions of Section 8 SDO.  Nothing turns on that for it is clear that Section 8 is merely a specific example of the generic concept of discrimination and exists in the Ordinance to ensure that that specific situation is covered.  Notwithstanding that there is no equivalent to Section 8 SDO in England I am satisfied that the principals and interpretations applied in relation to other aspect of discrimination legislation in England should also be applied in relation to claims where Section 8 SDO is raised.”

“The Appropriate Text

The forms of discrimination alleged by Miss Chang, i.e. as a consequence of pregnancy and victimization consequent upon a complaint to the EOC, are commonly called direct discrimination.  In cases of direct discrimination, the approach to determining whether there is a less favourable treatment on the prohibited ground is the “but for” test denounced by the House of Lords in R v Birmingham City Council ex p Equal Opportunities Commission [1989] AC1155 and James v Eastleigh Borough Council [1990] 2 AC 751.  The same test is applied in cases of victimization:  see Nagarajan v London Regional Transport [2000] 1 AC 501.”

“The “but for” test requires a comparator against whom the conduct applied to the Plaintiff is measured.  In the case of pregnancy discrimination the comparator is not another pregnant employee but a person who is a normal employee: see Chief Constable of West Yorkshire Police v Khan [2000] IRLR 324.”

37.The ‘less favourable treatment’ test is applied both in the discrimination and victimization claims.  In the Chief Constable of West Yorkshire Police v. Khan, Lord Nicholls referred to the case of Kirby v. Manpower Services Commission [1980] ICR 420.  Slynn LJ held that “the relevant question was – whether the employers had treated the complainant less favourably than they would have treated someone in their employment who gave away confidential information whatever its kind” (see p. 427 G – H).  In the case of Aziz v. Trinity Street Taxis Ltd. [1988] ICR 534, Slade LJ – disapproved the test applied in Kirby v. Manpower Services Commission.  Slade L J held that by expelling Mr. Aziz the association had treated him less favourably than other members.  But, to constitute victimization, the motive which caused the alleged discrimination to treat the complainant less favourably than others must be a motive consciously connected with the race relation legislations.  Lord Nicholls of Birkenhead in Khan’s case said at p. 1071 para. 23 – 28 “The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act.”

38.In the English Court Appeal Case of King v. GB - China Centre [1992] ICR 516 at p. 528 Lord Justice Neill referred to a number of authorities and said on at A to D :

“A year later in North West Thames Regional Health Authority v. Noone [1988] ICR 813, 822 May L.J. repeated his comment that he did not find the decision in Khanna (altogether satisfactory) he then continued (in these cases of alleged racial discrimination) it is always for the complainant to make out his or her case.  It is not often that there is direct evidence of racial discrimination, and these complaints more often then not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts.  For myself I would have thought it was almost common sense that if there is a finding of discrimination of difference of race and then an adequate or unsatisfactory explanation by the employer for the discrimination usually the legitimate inference will be that the discrimination was on racial grounds.)”

Neill L J said further on the same page F to H:

“From these several authorities it is possible, I think, to extract the following principles and guidance.  (1) It is for the applicant who complains of racial discrimination to make out his or her case.  Thus if the Applicant does not prove the case on the balance of probabilities he or she will fail.  (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination.  Few employers will be prepared to admit such discrimination even to themselves.  In some cases discrimination will not be ill-intentioned but merely based on an assumption that “he or she would not have fitted in”.  (3) The outcome of the case will therefore usually depend in what inferences it is proper to draw from the primary facts found by the Tribunal.  These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65 (2b) of the Act of 1976 from an evasion of equivocal reply to a questionnaire.  (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of difference in race were often point to the possibility of racial discrimination.  In such circumstances, the Tribunal would look to the employer for an explanation.  If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that this discrimination was on racial grounds.  This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v Noone [1988] 1 ICR 813, 822; “almost common sense.”  (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof.  At the conclusion of all the evidence the Tribunal should make findings as to the primary fact and draw such inferences as they consider proper from those facts.  They should then reach conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”

39.In the Hong Kong Case of Yuen Wai Han v. South Elderly Affairs Limited [2002] 3 HKLRD 621, Judge Wong found in favour of the plaintiff for the reason that the defendant in that case was in breach of Section 8A of the SDO on the ground of the plaintiff’s pregnancy that she was treated less favourably than a person who was not pregnant.  The plaintiff in that case applied for the position of part time social worker on Sundays for the defendant.  When interview for the part time position she told the defendant she was 4 months’ pregnant.  After working in the part time position for two weeks she was asked if she was interested in the post of supervisor with the defendant.  She was told at an interview for the position of supervisor that her qualification as a social worker would bring a professional imagine to the Defendant.  She resigned from her current position and signed the contract for the post of supervisor with the defendant but the defendant terminated the contract before the plaintiff reported for duty.  Judge Wong at paragraph 21 of his judgment referred to the case R v Birmingham City Council ex p Equal Opportunities Commission (No. 1) [1985] AC1155 at 1194 per Lord Goff:

“There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words, if the relevant girl or girls would have received the same treatment as the boys but for their sex.  The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned, is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive and yet did in fact discriminate on the ground of sex.”

40.The “but for” and “less favourable treatment” test was applied by the Hong Kong Court of Final Appeal in S J & Others v Chan Wah & Others [2000] 3 HKLRD 641.  In King v Great Britain – China Centre [1992] ICR 516 at p.528 G to H, Neill L J held:

“3.     The outcome of a case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.  These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw from an evasive or equivocal reply to a questionnaire.”

41.In the present case I apply the “but for” and “less favourable treatment” test and follow the principles laid down by Neill L.J. in King v. GB – China Centre.  The same approach was adopted in the cases of Chang Ying Kwan and Yuen Wai Han.

42.The burden is on Miss Lam to prove discrimination on a balance of probabilities.  Once Miss Lam is able to show from the primary facts that inferences can be drawn from the circumstances that disclosed a possibility of discrimination, the Court would look to the employer for an explanation.  If there are no or no adequate explanation put forward, the Court will infer that there is discrimination as a matter of common sense.  This interpretation was the conclusion of Neill L.J. in King v. GB - China Centre where he referred to the dictum of May L.J. in the case of North West Thames Regional Health Authority v. Noone [1988] ICR 813 at 822:

“In these cases of alleged racial discrimination it is always for the complainant to make out his or her case.  It is not often that there is direct evidence of racial discrimination, and these complainants more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts.  For myself I would have thought that it was almost common sense that, if there is a finding of discrimination and of difference of races and then an adequate or unsatisfactory explanation by the employer for the discrimination usually legitimate inference will be that the discrimination was on racial grounds.”

43.In the present case, the Plaintiff invited the court to draw inferences in the Plaintiff’s favour and the Plaintiff relied on the following:

(a)	Evidence of good performance, good relationship with colleagues and devotion to her job;
(b)	The fact that she had to take pregnancy related sick leave for significant length of time before childbirth;
(c)	The recruitment of the permanent secretary during her sick leave;
(d)	Evidence that Mr. Fung told her over the telephone that Mr. Herman Cheng did not want to continue to employ her because of her bad health and that Mr. Herman Cheng wanted her to care for her son;
(d)	Evidence that she told Miss Vera Tse that the Defendant would dismiss her because of her pregnancy and family status.

I find Miss Lam has established the primary facts on her claim based on discrimination under the SDO and FSDO.  I shall examine if the Defendant has offered a reasonable explanation to the dismissal of Miss Lam applying the principles and guidance set out in Neill L J’s judgment in King v. GB-China Centre .

The work performance of the Plaintiff

44.The Defendant claims that Miss Lam had under-performed. I find Miss Lam has shown that her performance before her pregnancy was satisfactory to her employer.  She had developed good relationships with colleagues and the directors.  This is shown by the increase of salary after the Plaintiff’s probation period and the friendly exchanges she had with her bosses.  After she found out she was pregnant she informed Miss Debbie Cheng, the managing director in charge of human resources of her pregnancy.  Miss Cheng shared her own experiences as an expecting mother with Miss Lam.  Miss Lam had also maintained an easy and friendly relationship with a number of her colleagues. Miss Lam often went out to lunch with her colleagues at the time.  As the secretary to the directors Mr. Herman Cheng, Mr. Terrence Cheng and Miss Debbie Cheng she was in charge of administrative duties and enjoyed the respect that came with the duties.  (See Miss Debbie Cheng’s notice to staff of 29/4/02).  Her popularity at the Defendant company was evident for she was invited to be the mistress of ceremony at the staff annual dinner on 1 February 2002.

45.According to Miss Wong Wai Sim, ever since Miss Lam joined the Defendant in May 2001, she had been sitting at a desk next to Miss Wong.  Miss Wong claimed she often overheard Miss Lam complaining about her heavy workload and muttering to herself that she ‘might as well be fired by Mr. Terrence Cheng’.  Such outbursts seemed to be a facet of Miss Lam’s personality, but they did not seem to have affected her job before her pregnancy.

46.The Defendant’s case was, during the time Miss Lam was working at the Defendant company, her work attitude was not satisfactory.  Evidence from Mr. Herman Cheng, however, was that her work was satisfactory but her attitude to him was not polite because she had thrown files on his desk and had used strong words insisting that he should sign his signatures immediately.  Evidence also came from Miss Debbie Cheng who claimed that she over-heard Miss Lam complaining loudly about her work and asking to be dismissed by Mr. Cheng.  She further over-heard Miss Lam complaining loudly about Mr. Li Chi Kong putting additional pressure on her workload and complaining about the heavy workload.  According to Miss Cheng, although the Miss Lam failed to submit a medical certificate certifying her pregnancy, the company had accepted Miss Lam’s pregnancy.  Miss Cheng further claimed that the company had been extremely tolerant of Miss Lam’s occasional emotional outbursts for fear that they would adversely affect her pregnancy.  It was Miss Cheng’s evidence that although Miss Lam said she would be taking maternity leave from mid June 2002, Miss Lam had never directly discussed it with her concerning the work arrangement after she commenced her maternity leave. Miss Cheng, however, did not request Miss Lam to do so.

47.Mr. Li Chi Kong claimed he had frequent contacts with Mr. Terrence Cheng and Mr. Herman Cheng and their secretary Miss Lam after he started a new project with the Defendant in December 2001.  It was his practice to fax over a hand-written manuscript for Miss Lam to type and process, he found Miss Lam impatient and impolite.  Miss Lam denied she was impolite to Mr. Li.

48.Based on Miss Wong’s evidence, Miss Lam’s constant mutterings and complaints about her workload began from the time she was first employed.  Yet, her performance was found to be satisfactory after the 3 months probation period and she received an increase of salary after probation.  Her complaints about the workload might have become more frequent after Mr. Li began sending her his manuscripts to type after she became pregnant; nevertheless, these were not significant enough for the Defendant to terminate her contract.  There were no oral or written warnings sent to Miss Lam concerning her attitude, performance or conduct.  The Defendant’s allegation of her lack of punctuality could not be a serious one because the 29^th April 2002 notice to the staff of the Defendant Company issued by Miss Debbie Cheng nominated Miss Lam and Mr. Fung as the person to report to in cases of lack of punctuality of company staff.  On a balance of probability, I find the Defendant has failed to establish a case of poor conduct and performance on Miss Lam’s part.

Pregnancy and Maternity Leave Notices

49.It is undisputed that Miss Lam had a threatened abortion in the early part of February 2002.  On this occasion, Miss Lam had informed Mr. Herman Cheng over the telephone that she was pregnant.  Before the threatened abortion in February, she had already informed her colleague Miss Wong and Miss Debbie Cheng of her pregnancy.  The reason Miss Lam told these two persons of her pregnancy in January 2002 was because Miss Wong was her closest friend at the office and Miss Debbie Cheng was responsible for human resources matters at the time.

50.In May 2002, Miss Lam had a conversation with Mr. Terrence Cheng and in the course of that conversation she informed him that her expected date of confinement would be in September 2002.  They had a discussion about the date when she would be taking her maternity leave and annual leave and the way the maternity leave would be split.  In May 2002, after Mr. Fung became in charge of human resources matters, Miss Lam told Mr. Fung that the Defendant should hire a temporary secretary in August to stand in for her because of her expected date of confinement.  Therefore, there was early notice to the defendant to prepare for Miss Lam’s maternity leave.

51.On 23^rd June 2002, Miss Lam was admitted in the Queen Mary hospital for placenta praevia.  She returned to work on 15^th July 2002 and submitted medical certificates for sick leave for the period 23^rd June to 13^th July 2002.  She was visited by Miss Wong while she was in hospital on 27^th June 2002.  By that time, she knew that she would be in hospital for much of the time before her confinement and she again told Miss Wong to tell Mr. Kim Fung to hire a temporary secretary as soon as possible.  There was, therefore, de facto notice of Miss Lam‘s condition to the Defendant.

52.Miss Lam was admitted into the hospital for the third time on 20 July 2002 because of her condition.  She was not discharged from the hospital until 29^th August 2002 after the birth of her son on 25^th August 2002.  She was given a medical certificate for sick leave for the period from 20^th July to 29^th August 2002.  After applying the 10 weeks maternity leave from the date of expiry of her sick leave, Miss Lam returned to work from maternity leave on 4^th November 2002.  Upon her reporting for work, Miss Lam submitted the sick leave certificates and maternity certificates together with her son’s birth certificate. 

53.Miss Lam’s pregnancy was obviously not a smooth one.  She had a threatened abortion the day after the company’s annual dinner on 2^nd February 2002.  On 22^nd June 2002, she was admitted into hospital due to pregnancy complications.  And on 20^th July 2002, she had to be hospitalized until her son’s birth on 25^th August 2002.  On each of these occasions of sick leave and hospitalization, she had informed either her boss Mr. Cheng or Mr. Kim Fung by telephone and submitted the sick leave certificates upon her reporting for duty after the expiration of leave.

54.Furthermore, Miss Debbie Cheng knew of Miss Lam’s pregnancy since January 2002, Mr. Herman Cheng was informed of it when Miss Lam suffered from threatened abortion on 2^nd February 2002 and took sick leave from 4 – 6 February 2002.  Miss Lam discussed her date of confinement and possible date of maternity leave with Mr. Terrence Cheng in May 2002.  It was unfortunate that Miss Lam eventually had to be hospitalized on 20^th July 2002 until she gave birth by caesarean section on 25^th August 2002 due to pregnancy complications.  Otherwise, she might have been able to submit her application for maternity leave prior to the date of confinement.  Clearly, at the time, it was not an important issue for the Defendant, otherwise Mr. Fung or Miss Cheng would have asked Miss Lam to submit these documents while she was still in hospital.

Miss Lam’s dismissal

55.Throughout the time of her sick leave since July 2002 and the subsequent maternity leave, Miss Lam was worried about her job because a new permanent secretary had been employed.  She rang Mr. Fung many times asking about the arrangements at work after her return from sick and maternity leave.  Mr. Fung was not able to give her direct answers, and she was clearly getting more anxious and suspected that the Defendant might not want to continue to employ her.  Therefore, in the latter part of September, she repeatedly called Mr. Kim Fung and directly asked him whether it was the Defendant’s intention not to continue with her employment.  On the requests of Miss Lam, Mr. Kim Fung approached Mr. Herman Cheng directly.  On 23^rd September, Mr. Kim Fung called up Miss Lam and informed her that Mr. Herman Cheng told him that he no longer wished to continue to employ Miss Lam because of Miss Lam’s poor health that it was better for Miss Lam to stay home and take care of her son.  Upon hearing this information Miss Lam sought help from the Labour Department and discovered that the employer would have to pay her a compensation for terminating her employment during her maternity leave.

56.It was upon her demand for 1 month’s salary compensation that resulted in the Defendant’s oral withdrawal of the termination notice.  By this time, the Defendant’s intention to terminate Miss Lam’s employment was clear to both parties.  There is no doubt in anyone’s mind that Miss Lam would be dismissed upon her return from maternity leave.  Consequently, Miss Lam decided to make the most of her maternity leave and sick leave while the Defendant put her in a different workstation from her previous one and she was given menial duties with instructions from Mr. Fung after her return.

Disclosure of termination notice to third parties

57.On the 24^th September, the day after Miss Lam was told by Mr. Fung of her dismissal, she talked to Miss Vera Tse of LG Chemical HK Ltd. on the phone.  In the course of their conversation, she was asked when she would be returning to work after maternity leave, she informed Miss Tse that her employment had been terminated because of her pregnancy.

58.According to the evidence of Miss Wong, at the end of September or early October 2002, she was told by Miss Vera Tse that at the end of September 2002 Miss Lam had told her she was sacked by the Defendant and the Defendant was described as an unscrupulous employer.  When Miss Wong repeated what she learned from Miss Tse to Mr. Terrence Cheng and Mr. Herman Cheng, they were angry that Miss Lam should have told a staff of the Defendant’s supplier a lie, maliciously damaging the Defendant’s reputation and they decided to terminate Miss Lam’s employment.

59.I am not convinced the disclosure by Miss Wong to the directors of the Defendant of what Miss Lam told Miss Tse of LG Chemical was the reason for Miss Lam’s dismissal.  The decision to terminate Miss Lam’s employment was already made on 23^rd September 2002 for Mr. Fung had related Mr. Terrence Cheng’s reply to Miss Lam on 23^rd September and he had asked Miss Lam to consider the employer’s decision and offer.  In spite of the breakdown over the terms of termination of employment, I find on a balance of probabilities that it was a foregone conclusion that Miss Lam’s employment would be terminated soon after her return from maternity leave.  Furthermore, this must have been made known to the Defendant’s staff, because she was shunned after her return from maternity leave.

60.I find on a balance of probabilities that Miss Lam’s employment was terminated because the Defendant’s director considered Miss Lam should stay home to look after her child and she should rest at home because of her poor health.  This conclusion on the Defendant’s part was formed probably because Miss Lam had a threatened abortion in February 2002, followed by pregnancy complications in June and July for which she was hospitalised until her son was born.  There is no doubt that Mr. Fung was speaking in his capacity as the officer in charge of human resources when he told Miss Lam the reason why her employment was terminated on 23^rd September 2002.

61.I am satisfied that Miss Lam was dismissed on ground of her pregnancy and her family status.  The Defendant is therefore liable to the Plaintiff.

Victimisation

62.By reason of my findings that the decision to dismiss Miss Lam was made by the Defendant on 23^rd September 2002, it is no longer an issue that Miss Lam was dismissed because she had informed Miss Tse that she was dismissed during her maternity leave.

63.Should I be wrong and for academic purposes, on the Plaintiff’s claim that the Defendant had committed the protected act by dismissing Miss Lam because she had told Miss Tse she was dismissed by the Defendant during her maternity leave, I am satisfied that the angry reactions of Messrs. Herman and Terrence Cheng to the disclosure of this information was due to the fact that the Plaintiff had told the Defendant’s supplier that the Defendant had dismissed her because of her pregnancy and she should be broadcasting her dismissal before she was officially dismissed.  Furthermore, the act of dismissal during Miss Lam’s pregnancy was unlawful under the Employment Ordinance.  If the decision to dismiss her was not made on 23^rd September 2002 and was made only after Miss Wong informed the two Mr. Chengs of what Miss Tse had told her, the act of dismissal on that ground would constitute victimization under s. 9 (1) (d) of the SDO and s. 6 (1) (d) of the FSDO. 

Damages

64.Miss Lam claims damages under the head of injury to feelings and loss of income.

Injury to Feelings

65.Judge Wong in the case of Yuen Wai Han v. South Elderly Affairs Ltd. [2002] 3 HKLRD 621 referred to the guidelines set out in the English case of Vento v. Chief Constable of West Yorkshire Police [2003] 1CR 318.  His award of $62,500 was upheld by the Court of Appeal which held that general awards in this type of cases should not be less than $50,000 referring to the guideline in Vento.  The Vento guidelines in a similar category were between £5,000 – 15,000.

66.The Court of Appeal in Vento in para. 46 – 47 at p. 330-331 of Mummery L J’s judgment held:

“46	This is the first time for many years that the Court of Appeal has had the opportunity to consider the appropriate level of compensation for injury to feelings in discrimination cases.  Some decisions in the employment tribunal and in the appeal tribunal have resulted in awards of substantial sums for injury to feelings, sometimes supplemented by compensation for psychiatric damage and aggravated damages…”
“47	Compensation of the magnitude of £125,000 for non-pecuniary damage creates concern as to whether some recent tribunal awards in discrimination cases are in line with general levels of compensation recovered in other cases of non-pecuniary loss, such as general damages for personal injuries, malicious prosecution and defamation.  In the interest of justice (social and individual), and of predictability of outcome and consistency of treatment of like cases (an important ingredient of justice), this court should indicate to employment tribunals and practitioners general guidance on the proper level of award for injury to feelings and other forms of non-pecuniary damage.  (See paragraphs 65 – 68 below.)”

He further held in para. 53:

“53	In Prison Service v Johnson [1997] ICR 275 Smith J reviewed the authorities on compensation for non-pecuniary loss and made a valuable summary of the general principles gathered from them.  We would gratefully adopt that summary.  Employment tribunals should have it in mind when carrying out this challenging exercise.  In her judgment on behalf of the appeal tribunal Smith J said, at p 283:
	“(i)	Awards for injury to feelings are compensatory.  They should be just to both parties.  They should compensate fully without punishing the tortfeasor.  Feelings of indignation at the tortfeasor’s conduct should not be allowed to inflate the award.  (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation.  Society has condemned discrimination and awards must ensure that it is seen to be wrong.  On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham MR [in John v MGN Ltd [1997] QB 586, 611], be seen as the way to ‘untaxed riches’.  (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases.  We do not think that this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards.  (iv) In exercising that discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind.  This may be done by reference to purchasing power or by reference to earnings.  (v) Finally, tribunals should bear in mind Sir Thomas Bingham’s reference to the need for public respect for the level of awards made.”

At para. 65 he gave guidance in this type of case:-

“Guidance

65     Employment tribunals and those who practise in them might find it helpful if this court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.  (i) The top band should normally be between £15,000 and £25,000.  Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.  This case falls within that band.  Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.  (ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.  (iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence.  In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

66     There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.

67     The decision whether or not to award aggravated damages and, if so, in what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled.

68     Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage.  In particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage.  The extent of overlap will depend on the facts of each particular case.”

67.Mr. Poon, representing Miss Lam, submitted the injury to Miss Lam was more serious than the plaintiff in Yuen Wai Han’s case.  I agree that her injury was more serious because Miss Lam had worked for the Defendant for 1½ year and she had enjoyed the respected position of being the executive secretary to the chairman of the board of directors.  I accept that she enjoyed working in that position at the Defendant company and was worried she would lose that position when a permanent secretary was engaged to replace her after she went on maternity leave.  The dismissal had cost her the friendship of her colleagues and a job in a respected position.  It had also affected her family life to an extent but her eventual separation with her husband would be far too remote to be taken into consideration.  Bearing in mind the Vento guidelines and applying them to the present case, I award the sum of $75,000 under this head.

Loss of Income

68.I am satisfied that Miss Lam should recover the 4½ months loss of income for it took her 4½ months to find her present job.  So far as the difference in salary is concerned, her loss should be the difference in salary for a period of 3 months.  The Defendant is a private enterprise, unlike the public sector such as the police force and fire services etc., there is no guarantee of security of salary and employment of Miss Lam’s job as a secretary in the private sector.  Her employment and income is subject to the well being of the employer’s business.  Miss Lam’s contract with the Defendant was terminable with 7 days’ notice, her claim for 24 months is thus far too excessive.  Furthermore, if Miss Lam’s performance is as competent and efficient as she claimed, she would no doubt have been given an increase in salary within 3 months at the new job to match her salary at the Defendant or she would have found a higher paid job within that time.  I therefore award the following:

			$
Injury to feelings			75,000
Loss of income		($15,800 x 4.5)	71,100
		($5,800 x 3)	17,400
	total		$163,500

69....Interests on loss of income from the date of writ to date of judgment at half judgment rate and thereafter at judgment rate.

Declaration

70.I would further allow a declaration that the Defendant had committed unlawful acts under S. 73 (3A) (a) of the SDO and S. 54(4) (a) of the FSDO by dismissing Miss Lam.

71.Costs nisi to the Plaintiff to be taxed if not agreed.

Parties : 

Mr. Herman L. H. Poon of Equal Opportunities Commission for the Plaintiff.

Mr. Jeremy Cheung instructed by Messrs. Huen & Partners for the Defendant.