Yeung Chung Wai v. St Paul's Hospital

DCEO7/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 7 OF 2003

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BETWEEN

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Before: Her Honour District Judge Marlene Ng in Court

Dates of Hearing: 24^th, 25^th and 26^th October, 12^th, 14^th and 15^th December, 2005 and 6^th and 7^th March, 2006

Date of Handing Down Judgment: 20^th July, 2006

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JUDGMENT

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I.  Introduction

1.Since 10^th November 1997, the Defendant hospital (the “Hospital”) employed the Plaintiff as a Clerk III. He was originally attached to the Admission Office (the “AO”). On 23^rd April 2001, he was transferred to work at the General Store (the “GO”) and the Out-Patient Department (the “OPD”) at different hours. On 15^th July 2001, he was transferred to work at the GO and the Reception Booth (the “RB”) at the Old Wing (the “Old Wing”) at different hours. The Hospital dismissed him on 24^th July 2002.

2.The Plaintiff claimed he suffered from ischemic heart disease as well as residual disabilities following angioplasty/stenting and open heart surgery in 1998 for acute myocardial infarction, so he was/is a person under disability. The Plaintiff further claimed he was unlawfully discriminated by reason of his disability in respect of the terms of employment contrary to section 11(2) of the Disability Discrimination Ordinance Cap.487 (the “DDO”). The Plaintiff lodged complaints of sex and disability discrimination against inter alia the Hospital with the Equal Opportunities Commission (the “EOC”) (the “EOC Complaint”) and participated in an early conciliation meeting with the Hospital as arranged by the EOC on 17^th September 2001 (the “EOC Meeting”). No settlement was reached and the Hospital refused to further conciliate with the Plaintiff. The Plaintiff claimed he was unlawfully victimised by the Hospital by reason of the EOC Complaint contrary to section 7 of the DDO.

II.  Relevant legislation

3.The relevant provisions of the DDO are as follows :

“6. Discrimination against persons with disability, etc.

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; ……”

7. Discrimination by way of victimisation

(1) A discriminator discriminates another person (“the person victimised”) in any circumstances relevant for the purposes for 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, or intends to do, any of them.

11. Discrimination against applicants and employees ……

(2)  It is unlawful for the employer, in the case of a person with a disability employed by him at an establishment in Hong Kong, to discriminate against that person –

(a) in a way he affords that person access to opportunities for promotion, transfer or training, or to any other benefits, services or facilities, or by refusing or deliberately omitting to afford that person access to them;

(b) in the terms of employment he affords to that person; or

(c) by dismissing that person, or subjecting him to any other detriment.” (my emphasis)

8.Section 3 of the DDO further provides that if (a) an act is done for 2 or more reasons and (b) 1 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 purpose of the DDO, the act is taken to be done for the reason specified in (b) above.

III.  Appropriate test and burden of proof

(a) The issue

9.In determining whether there is less favourable treatment on the prohibited ground, the same approach should be adopted for determining disability discrimination and discrimination by victimisation (Nagarajan v London Regional Transport [1999] 4 All ER 65, 72 and 79-80, per Lord Nicholls and Lord Steyn). Lord Nicholls regarded the phrases “on the ground of” and “by reason that” interchangeable in this context. H H Judge H C Wong also said the “less favourable treatment” test applied to both discrimination and victimisation claims (Lam Wing Lai v Y T Cheng (Chingtai) Limited DCEO6/2004 (unreported, 23^rd December 2005) and HCMP718/2006, Cheung and Tang JJA (unreported, 30^th May 2006), and Chan Choi Yin Janice v Toppan Forms (Hong Kong) Limited DCEO6/2002 (unreported, 3^rd March 2006)).

(b) Synopsis of the Hospital's stance

10.Mr Chan Chi Hung SC (“Mr Chan SC”), leading counsel for the Hospital, submits that for disability discrimination, the Plaintiff carries the burden of establishing (a) the Plaintiff's medical/health disability, (b) the less favourable treatment compared with comparator(s) and (c) such was “on the ground of” the Plaintiff's disability. For discrimination by way of victimisation, he submits that the Plaintiff has to show he was treated less favourably (ie he was given poor staff performance appraisal reports (the “Reports”) and was dismissed) as compared with comparators “by reason that” the Hospital committed an unlawful act under section 7(1)(d) of the DDO.

(c) Synopsis of the Plaintiff's stance

11.Mr Richard Chan (“Mr Chan”), counsel for the Plaintiff, argues that since it is unusual to find direct evidence of discrimination (which normally depends on inferences drawn from primary facts), it is unnecessary for the Plaintiff “to carry the difficult burden of establishing that any of the protected acts be either a significant influence or an activating cause of the treatment received by that person”. Mr Chan accepts mere knowledge by the Hospital of the protected act is insufficient, but argues so long as the Plaintiff is able to establish the Hospital was aware of the protected act when it carried out the acts which the Plaintiff complains, in the absence of an adequate or satisfactory explanation, the Plaintiff will have established on balance there has been victimisation. The burden of establishing there has been no adequate or satisfactory explanation lies upon the Plaintiff.

(d) English authorities on the test to be applied

12.The DDO is modelled on equivalent English legislation (eg the discriminatory provisions of the Race Relations Act), so the Hong Kong courts have looked to England where a large body of case law has arisen for guidance on interpretation. Mr Chan SC relies on Nagarajan's case, which is on discrimination by victimisation. Lord Nicholls said at p.71 that :

“…… Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence, which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.

The crucial question just mentioned is to be distinguished sharply from the second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point. …… In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign. …… ”

He went on to say at p.72 as follows :

“…… A variety of phrases, with different shares of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and  effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided as far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out. ……” (my emphasis)

13.In determining whether there is discrimination, the tribunal has to decide whether the proper inference to be drawn from the evidence is that the prohibited act was a reason why the discriminator acted as he did. Lord Nicholls at p.72 said : “…… in order to justify such an inference the tribunal must first make findings of primary facts from which the inference may properly be drawn ……”. The same point was made in Equal Opportunities Commission v Birmingham City Council [1989] 1 All ER 769 and James v Eastleigh BC [1990] 2 All ER 607, both sex discrimination cases. The above 3 English authorities have been cited with approval by the Hong Kong courts (eg Chang Ying Kwan v Wyeth (HK) Limited DCEO10/1999, H H Judge Saunders (unreported, 27^th February 2001) and Lam Wing Lai's case).

14.Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947 is another case on discrimination by victimisation. In that case, the applicant police officer complained to an industrial tribunal of unlawful racial discrimination. The chief constable would ordinarily comply with requests for references but refused to provide one to the applicant because of pending proceedings against him, so the applicant additionally complained of victimisation. It was held the refusal was not “by reason that” the applicant brought proceedings against the chief constable, so he did not discriminate by way of victimisation. Lord Nicholls expanded on his views in respect of the ingredient “by reason that” at p.1954 as follows :

“…… the third ingredient (“by reason that”) does not raise a question of causation. Causation is a slippery word, but normally is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the “operative” cause, or the “effective” cause. Sometimes it may apply a “but for” approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [2000] 1 AC 502, 510-512, a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases “on racial grounds” and “by reason that” denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.” (my emphasis)

15.Lord Hoffman accepted in one sense the fact the applicant had brought proceedings was a cause of his being treated less favourably. If he had not brought proceedings, he would have been provided a reference. In some contexts, a causal link of this kind would be enough(see the cases of Birmingham City Council and Eastleigh BC). But in Khan's case, it did not follow that the applicant bringing proceedings was a reason (conscious or unconscious) why he was treated less favourably. The statutory provision contemplated the discriminator to have knowledge of the protected act and such knowledge caused or influenced the discriminator to treat the victimised person less favourably than he would treat other persons, which was not at all the same as saying that but for the protected act, the applicant would not have been treated in the way he was. Lord Scott put the matter as follows at p.1964 :

“Was the reference withheld “by reason that” Sergeant Khan had brought the race discrimination proceedings? In a strict causative sense it was. If the proceedings had not been bought the reference would have been given. The proceedings were a causa sine qua non. But the language used in section 2(1) is not the language of strict causation. The words “by reason that” suggest, to my mind, that it is the real reason, the core reason, the causa causans, the motive for the treatment complained that must be identified.”

(e) Local authorities on the test to be applied

16.Turning to the Hong Kong cases, an issue arose in Secretary for Justice & ors v Chan Wah & ors [2000] 3 HKLRD 641 as to whether the electoral arrangements in the 1^st respondent's village under which non-indigenous women married to indigenous men had the right to vote but non-indigenous men married to indigenous women were excluded from voting amounted to sex discrimination. The Court of Final Appeal considered the Court of Appeal correctly adopted the “but for” test and held there was unlawful discrimination. But for his sex, the non-indigenous man (married to an indigenous villager) would have received the same treatment, ie the right to vote, as the non-indigenous woman (married to an indigenous villager). The simple “but for” test sufficed since the conduct complained of could not have admitted of any explanation other than a gender consideration. But it does not exclude the situation recognised in Khan's case that sometimes it would not be sufficient. This is illustrated by Chang Ying Kwan's case, which case Mr Chan strongly relies.

17.In that case, the plaintiff claimed she was subjected to unlawful discrimination on the ground of her pregnancy and as a result of her complaint to the EOC she was victimised. H H Judge Saunders referred to Nagarajan's case and the Court of Appeal decision in Khan's case ([2000] IRLR 324), but did not have the benefit of the House of Lords decision in Khan's case delivered some months later. Although the learned judge adopted the “but for” test, he was alert to the need to establish the causa causans as evident from his approval of the following passage from Slynn LJ's judgment in Seide v Gillette Industries Ltd [1980] IRLR 427 in relation to racial discrimination :

“It does not seem to us to be sufficient merely to consider whether the fact that the person is of a particular racial group within the definition of the statute is any part of the background, or is (as it is said in other cases) a causa sine qua non of what happens. It seems to us that the question that has to be asked is whether the activating cause of what happens is that the employer has treated the person less favourably than others on racial grounds.” (my emphasis)

H H Judge Saunders went on to say at para.26 of the judgment as follows :

“        It may be seen that the standard set by Lord Steyn is lower than that sought by Lord Nicholls or Slynn LJ. Whereas Lord Nicholls would require that there be a ‘significant influence', and Slynn LJ an ‘activating cause' Lord Steyn merely required that the employee must be so treated because of the employer's knowledge of the protected act. ……” (my emphasis)

Whatever expression that was used, the learned judge held that to find liability sex discrimination must be causative of the less favourable treatment as distinct from being part of the background.

18.The approach of the House of Lords in Khan's case was heralded in the pre-Khan judgment of H H Judge Muttrie in L v Equal Opportunities Commission & ors DCEO1&6/1999 (unreported, 13^th November 1999), a case on inter alia disability discrimination and discrimination by victimisation. H H Judge Muttrie said at para.52 : “The prohibition is against the employer treating, …… an employee less favourably than it treated or would treat another person. It draws the distinction well known in the law of tort between the causa causans or operative cause and the causa sine qua non, or the background cause.” He continued at para.53 to say “…… it would not follow that because disability is present, it must be one of the reasons for the employer's action. The plaintiff in such a case would have to show that his disability was at least one of the reasons for making him redundant, i.e. one of the activating causes of the employer's decision. I do not think that section 3 can be intended to provide that in any case where disability is a causa sine qua non it should be taken as the causa causans. In effect it would produce an irrebuttable presumption that any action taken in respect of a disabled employee was caused by his disability. That would produce absurdity.”

19.Such view is also echoed in the judgment of H H Judge To in Aquino Celestina Valdez v So Mei Ngor Kitty DCEO3/2004 (unreported, 12^th September 2005). He said at para.11 that :

“But the dismissal is unlawful only if it is discriminatory within the meaning of section 6 in that it is connected to the employee's disability. ……Thus, in my view, a dismissal is not discriminatory if summary dismissal is justified. Putting that in another way, summary dismissal, if justified, provides a complete defence to an action for discrimination.” (my emphasis)

20.H H Judge H C Wong in Lam Wing Lai's case and Chan Choi Yin Janice's case referred to the “but for” test, but also cited Nagarajan's case and the House of Lords decision in Khan's case with approval.

(f) Conclusion on the test to be applied

21.In the circumstances, I apply the “but for” test read in light of the House of Lords' approach in Khan's case and clarified by H H Judge Muttrie and H H Judge To in L's case and Aquino Celestina Valdez's case respectively. The essential question is : in all the factual circumstances of the case, what is the real and effective cause of the act complained of?  Common sense tells us that not all of the facts constitute a cause for the prohibited act that leads to legal liability. Other than obvious cases where there can be no reasonable or innocent explanation other than the prohibited act, to show causal connection, the causative factor must be an effective causa causans which is more than a background event, but it need not be the only or predominant cause. In my view, this is consistent with the test applied by H H Judge Saunders in Chang Ying Kwan's case, but if it were not so, I respectfully decline to follow his approach.

(g) Burden of proof

22.To properly understand Chang Ying Kwan's case which Mr Chan relies heavily, it will be necessary to first refer to King v Great Britain-China Centre [1992] ICR 416, Westlaw transcript where Neill LJ said as follows :

“…… 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(2)(b) 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 would 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 the discrimination was on racial grounds.  This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v Noone [1988] 1 I.C.R. 813, 822, “almost common sense.”  (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof.  At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts.  They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”

23.King's case has been cited with approval by H H Judge Saunders in Chang Ying Kwan's case and H H Judge H C Wong in Lam Wing Lai's case and Chan Choi Yin Janice's case. Mr Chan relies on the following passages from Chang Ying Kwan's case to say that once the Plaintiff establishes knowledge of the protected act on the part of the Hospital, the evidential burden shifts to the Hospital to give an adequate or satisfactory explanation for the prohibited act :

“26. ……The evidence required to meet either Lord Nicholls' or Slynn LJ's criteria may often be difficult if not impossible for a plaintiff to adduce. On the other hand the mere fact of knowledge of the protected circumstance, in this case Ms. Chang's complaint to the EOC, is a very heavy burden to place upon an employer. The adoption of that standard may well leave an employer thinking that he simply cannot take any steps in relation to an employee who has made any sort of complaint, for fear of a charge of victimisation. It will be only in rare cases, as exemplified by the decision in Ray Chen (supra), that an employer will be able to rely with any degree of confidence upon s 9(2).

27. I have concluded that the appropriate balance can be achieved by applying the words of Neill LJ in the exercise of determining whether there has been victimisation. It should not be necessary for a plaintiff to carry the difficult burden of establishing that any of the acts protected under s 9(1)(a)-(d) be either a significant influence or an activating cause of the treatment received by that person. At the same time, mere knowledge of the protected act on the part of an employer ought not to be the threshold to be met by a plaintiff. In my view a person who complains of discrimination by way of victimisation under s 9 SDO must establish that one at least of the four acts set out in s 9(1)(a)-(d) was within the knowledge of the defendant at the time he carried out the acts of which the plaintiff complains. Once that has been established, in the absence of an adequate or satisfactory explanation, a plaintiff will have established, on the balance of probabilities that there has been victimisation. The burden of establishing that there has been no adequate or satisfactory explanation of the conduct lies upon the plaintiff.” (my emphasis)

24.The views of H H Judge Saunders were clearly premised on Neill LJ's words. Neill LJ was adamant it was unnecessary and unhelpful to introduce the concept of shifting the evidential burden of proof. Instead, the proper approach of the court was to make primary findings of fact from the evidence, draw appropriate inferences therefrom and come to a decision on the ultimate question on the balance of probabilities. Such approach is in line with that adopted in a number of subsequent local cases.

25.L's case said at para.170 that “…… This is a claim in tort, at the end of the day, and the plaintiff has to establish fault on the balance of probabilities. Section 3 [of the DDO] does not provide a presumption of discrimination and it does not shift the onus of proof to the defendants. ……” (my emphasis)

26.H H Judge To in Aquino Celestina Valdez's case said at para.13 as follows :

“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. In a real situation, it is unusual to find direct evidence of the reason for the discriminatory treatment, proof will have to be by inference. …… [In] between these extremes …… [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. …… 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. ……” (my emphasis)

27.In Lam Wing Lai's case and Chan Choi Yin Janice's case, H H Judge H C Wong followed Neill LJ's guidance in King's case and held that the burden was on the plaintiff to prove discrimination on the balance of probabilities. Once the plaintiff was able to draw inferences from the primary facts that disclosed a possibility of discrimination, the court would look to the employer for an explanation. If no or no adequate explanation was put forward, the court would infer there was discrimination as a matter of common sense. Mr Chan accepts it is for the Plaintiff to show the Hospital's explanation is neither adequate nor satisfactory. The above approach does not shift the evidential burden of proof. It is nothing more than a simple, pragmatic and common sense exercise in assessing and weighing the evidence on the balance of probabilities with the burden of proof always and firmly on the Plaintiff. I do not find Chang Ying Kwan's case inconsistent with this approach. But if it were otherwise, I respectfully disagree with any suggestion of shifting the evidential burden of proof.

28.I also disagree with Mr Chan's submission that in maintaining an action on discrimination by victimisation, so long as the plaintiff is able to establish the protected act was within the defendant's knowledge at the time when the prohibited acts were carried out, in the absence of any adequate or satisfactory explanation, the plaintiff will have established on balance there has been victimisation. This is premised on the rejected argument of shifting the evidential burden of proof. Even H H Judge Saunders in Chang Ying Kwan's case accepted mere knowledge of the protected act on the employer's part is an insufficient threshold to be met by the plaintiff employee, a proposition Mr Chan acknowledges as correct.

29.However, Mr Chan has a fall-back proposition : so long as a plaintiff employee is able to establish that a protected act is within the defendant employer's knowledge at the time when it carries out the acts which the plaintiff complains, the burden falls on the plaintiff to provide an explanation (although it is for the defendant to show it is not adequate/satisfactory), but the court will also examine the surrounding facts and circumstances to determine on the balance of probabilities whether there has been discrimination by victimisation.

30.In my view, such complex evidential exercise speaks eloquently of the difficulty of such proposition. I am not convinced any useful purpose will be served by going through the above evidential exercise when the court ultimately has to balance and weigh the factual matrix to determine the final question.

31.I am of the view that the evidential burden does not shift to the defendant employer at any stage. However, the court should approach the question of proof with common sense bearing in mind the standard of proof is on the balance of probabilities and it is sometimes not easy to have direct evidence of discrimination. Once the plaintiff establishes the relevant primary facts on the balance of probabilities, the court in drawing the appropriate inferences will have to consider and weigh the explanation (if any) given by the defendant. With these principles in mind, I now turn to the present case.

IV  Overview of the witnesses

32.The Plaintiff himself gave evidence. The Hospital called the following witnesses :

(a) its executive manager, Mr Leonard Yeung (“Mr Yeung”), who joined the Hospital in July 1997 and was in charge of inter alia human resources. He previously worked in nursing management posts in the public sector for many years;

(b) the AO's supervisor from mid-1997/early 1998 to at least 2002, Ms Teresa Fok (“Ms Fok”);

(c) the OPD's supervisor from at least 1998 to 2001, Sister Nancy Cheung (“Sr Cheung”), who also participated in nursing administration, staff training and pastoral care;

(d) the GO's supervisor, Sister Joanna Fong (“Sr Fong”), who took over from Sister Catherine Loh (“Sr Loh”) on 22^nd August 2001 when Sr Loh fell ill. Sr Fong is a registered nurse who also handled nursing and miscellaneous work at the wards;

(e) the Hospital's sister superior, Sister Jacqueline Ho (“Sr Ho”), who held this post from 1980 to the end of 1986 when she went to another hospital before returning in 1999 to again serve as the Hospital's sister superior.

33.Having considered the evidence, I have no doubt the Plaintiff had a high opinion of his own work performance, which is regrettably misguided. I find the Hospital's witnesses to be honest, fair and reliable in respect of their appraisals of his work performance, which apart from his service at the RB was substandard or unable to meet the job requirements. The Plaintiff stubbornly refused to acknowledge such reality or listen to his supervisors' instructions or suggestions for improvement. This is compounded by his insistence of doing things his own way, a result, I think, of his obstinate belief in the superiority of his own views. But such conduct caused extra work for the Plaintiff's colleagues and required extra efforts from his supervisors to rectify his errors or follow-up on his work.

34.The Plaintiff's perception of his own perfection led to negative over-reactions against constructive suggestions for improvement by his supervisors and unwarranted suspicion that he was targeted and picked upon. His misplaced conviction of his own righteousness also caused him to be vexingly persistent in trying to get his own way with little care for the reasonable views of his supervisors and the Hospital management. He was eager to point out the perceived mistakes of others with a view to bolster the righteousness of his stance and to complain of his situation by drawing comparison with the perceived better terms thought to be enjoyed by other colleagues. He was willing to seize on any point/argument to say he is right, but displayed blindness to his own weaknesses/faults. He was also willing to tailor his complaints to suit his assertions. Regrettably, the Plaintiff's mind-set, unsupported by objective fact, resulted in unjustified and coloured interpretations of actions taken by the Hospital and its senior staff and in embellishments of his version of events, which I reject.

35.I am impressed by the honesty of the Hospital's witnesses and the reliability of their evidence. I find that any difference in their evidence were largely a result of poor recollection due to lapse of time and/or lack of direct involvement over certain events/matters. They have no impact on other aspects of their evidence that I accept.

36.When Sr Fong gave evidence, her frustration with the Plaintiff's recalcitrant work attitude (despite her patient efforts to help him understand the work requirements) was palpable. Whilst Ms Fok and Sr Cheung did not confront the Plaintiff on his errors as directly as Sr Fong, it is clear they considered (and, I must say, with reason) the Plaintiff's work performance substandard and/or unsatisfactory. In my view, the Hospital all along adopted an accommodating attitude vis-à-vis the Plaintiff and his various supervisors as well as Mr Yeung/Sr Ho have tried to find a suitable post for him that would balance his wishes and the Hospital management requirements. But with his obstinate/unmanageable traits, it is little wonder they were eventually unsuccessful. I am not persuaded the Hospital discriminated against the Plaintiff. There is also no convincing evidence to support the suggested inference of concerted effort by various senior Hospital staff to victimise the Plaintiff. Following my findings on credibility, even if the evidential burden is shifted to the Hospital (which I disagree), the Hospital has put forward an adequate or satisfactory explanation (see below).

V.  Disability discrimination

(a) Synopsis of the Plaintiff's case

37.The Plaintiff claimed that the Hospital on the ground of his medical/health disability treated him less favourably than it treated or would treat a person without such disability “in the terms of employment” it afforded that person and/or by subjecting him to a detriment.

38.Since 23^rd April 2001, the Hospital required the Plaintiff, a Clerk III, to work from 11:00am to 7:00pm and take up patient registration duties at the OPD as well as store/inventory duties at the GO. But all other GO staff and the Plaintiff's predecessor worked at the GO from 8:00am to 4:00pm. On/about 16^th July 2001, the Hospital transferred the Plaintiff to work at the GO from 12:00 noon to 4:00pm and at the RB as receptionist clerk from 4:00pm to 8:00pm (the “Late Shift”). But the working hours of Mr Dominic Chan (“Mr D Chan”), a Clerk III transferred to work at the RB on/about 1^st September 2001, were from 8:00am to 4:00pm. The Hospital also unreasonably refused the Plaintiff's request to share his Late Shift with Mr D Chan on rotation basis. At the trial, Mr Chan confirms the Plaintiff only relies on Mr D Chan as the relevant comparator.

(b) Synopsis of the Hospital's case

39.Every Clerk III post required particular knowledge and skills, so the Hospital management had to post staff according to (a) their ability/suitability and (b) the Hospital's operational requirements, including inter alia manpower needs and performance efficiency. The Hospital's decision to transfer the Plaintiff to work at both the GO and the OPD (the “GO/OPD Transfer”) was an attempt to balance the Plaintiff's request to join the GO and the Hospital's human resources management. The decision to transfer the Plaintiff to work at the GO and the RB (the “GO/RB Transfer”) was an attempt to balance the Plaintiff's ability/suitability and the Hospital's manpower requirements. The Hospital denied the GO/OPD and GO/RB Transfers or the terms of the Plaintiff's working hours/locations reflected any disability discrimination.

(c) Disability

40.Law  Disability in relation to a person is widely defined in section 2(1) of the DDO to mean inter alia the “…… partial loss of the person's bodily …… functions” or “malfunction …… of a part of the person's body” and includes a disability that presently exists, previously existed but no longer exists, may exist in the future or is imputed to a person.

41.Plaintiff's case  On 20^th March 1998, the Plaintiff was on duty at the AO when he suffered a squeezing sensation in the chest. He was found to have acute myocardial infarction. Angioplasty/stenting was performed at the Hospital and he was followed up at Grantham Hospital (the “GH”). Thereafter the Plaintiff suffered chest pain/discomfort several times each week, each spell lasting about 5-10 minutes. When it happened, he would take deep breaths and wait for the sensation to pass. It did not affect his work and he did not alert his colleagues, so they would not know about his chest pain/discomfort.

42.On/about 6^th December 1998, the Plaintiff had open-heart surgery at the GH. He was discharged on 19^th January 1999 on daily medication (8-9 pills) and followed-up at the GH's cardiac outpatient clinic (the “Clinic”) for less than 10 times each year with gradually decreasing frequency. He was prescribed medication but not other clinical management. He told the doctors about pulling sensations at the surgical scars on his chest and also at his left arm and both legs (donor sites for replacement blood vessels) upon change of weather and how the prescribed medication upset his stomach.

43.The Plaintiff complained of (a) intermittent chest discomfort, (b) impaired sense of smell due to taking aspirin, (c) weakness of left arm/hand, especially the thumb and index finger, (d) inability to stand or (when the weather changed) walk for a long time and (e) shortness of breath. The doctors said (c) and (d) had reached maximum improvement. No physiotherapy, change of medication or other treatment was advised for the above residual disabilities. His condition remained static until 2005 when his medication was altered.

44.The doctors advised the Plaintiff not to do things in a hurry, to become agitated or to carry heavy objects (the “Advice”). The Plaintiff mentioned this to his colleague Sr Loh (who was neither the Hospital management nor his then supervisor) when she visited him during his hospitalisation at the GH. The Plaintiff also casually mentioned the Advice to his colleagues when they asked him how he was doing, but could not remember whether he informed the Hospital management. He agreed he appeared quite normal when he returned to work. He felt he was slower in his work, but it was not noticeable by his supervisor/colleagues. As far as they were concerned, right up to his dismissal he had a heart disease and an operation but his work performance was otherwise normal without observable residual symptoms/disabilities.

45.Analysis  GH's discharge/transfer summary dated 19^th January 1998 and other post-surgery medical records did not mention the Plaintiff's aforesaid residual disabilities. The Plaintiff only mentioned the alleged weakness in his arm/legs when he gave evidence. Had he suffered from such residual disabilities since 1999, I believe he would have mentioned them given his many letters and statements to the EOC (the “Statements”). I am persuaded that the Plaintiff's allegation of residual weakness of arm/legs is an unreliable attempt to embellish/exaggerate his disability. Even so, the Plaintiff is a person under disability within the wide definition of section 2(1) of the DDO. I accept he suffered from intermittent but brief spells of shortness of breath and chest discomfort following open-heart surgery as a result of his heart condition.

46.But the more significant question is whether the ingredient “on the ground of” under section 6 of the DDO has been satisfied. I find the Plaintiff did not tell the Hospital management or his supervisor about his residual disabilities when he returned to work in 1999. The Plaintiff admitted (a) his heart condition did not affect his work performance after the surgery and (b) his bouts of shortness of breath/chest discomfort as well as his feeling of slowness were not noticeable. So even though they knew the Plaintiff (i) suffered from heart disease, (ii) underwent medical procedures in 1998 and (iii) had a heart problem that required sick leave for follow-up visits to the Clinic, the Hospital management and the Plaintiff's supervisors had no idea of his residual disabilities or such residual disabilities might affect his work performance.

(d) “On the ground of” disability

47.The Plaintiff has to show that the GO/OPD and GO/RB Transfers as well as the terms of his employment were made “on the ground of” his disability or that 1 of the reasons was his disability.

(1) Plaintiff's initial terms of employment

48.On 10^th November 1997, the Hospital employed the Plaintiff as a Clerk III. According to his employment contract dated 7^th November 1997 (the “Contract”), the Plaintiff would be on shift duties and had to work 48 hours per week (clause 4). He must obey the Hospital's posting arrangements and any changes thereof (clause 13) and he must strictly observe all stipulations/regulations of the Hospital and all rules announced by the Hospital at any time (clause 14).

49.It is necessary to discuss briefly the Plaintiff's duties at the AO and his conflict with Ms Fok as they set the background for the GO/OPD Transfer. They are also relevant to the Plaintiff's claim for discrimination by victimisation.

(2) Duties at the AO

50.Staff at the AO was responsible for registering patients for admission, making advance bookings of hospital beds/rooms, receiving deposits, giving explanations to patients/families and answering telephone enquiries, which work required use of the computer. Mistakes would upset the allocation of hospital beds/rooms (which had different grades/prices) and result in complaints and loss of revenue. In his Statement of 6^th September 2002, the Plaintiff claimed he did all of the above work. I prefer Ms Fok's evidence he only did so for the first 6 months, but (as Mr Yeung/Sr Ho said) he made mistakes over patient registration and messed up computer data. So after the first 6 months he was assigned to receptionist duties only.

51.I find the Plaintiff's claim that he never committed any mistake unreliable. On the 3^rd day of trial he admitted it was possible he might have checked the wrong computer information and told an intended patient there was no room of a particular grade when in fact such room was available, but he said anyone could have committed such mistake. However, on the 4^th day of trial the Plaintiff denied he made any such mistake. I also do not accept his work performance at the AO was all along satisfactory. Although his Report dated 17^th September 2001 prepared by Ms Fok (“Fok's Report”) gave “B”, “C” and “C” grades for “儀表”, “準時” and “待人接物” respectively, the Plaintiff was able to manage only because he was assigned receptionist duties. His limited duties put a strain on the AO duty roster because the other 3-4 staff on his shift would have to share/handle all counter duties and other work.

(3) Plaintiff's conflict with Ms Fok

52.Evidence  The Plaintiff had conflict with Ms Fok over change of duty roster and leave arrangements. He disagreed with her method of calculation of leave days and her views on when leave could be taken, and felt she was biased against him. The conflict was first reported to Mr Yeung in 1999 and he counselled/encouraged them to work together. According to the Hospital's letter to the EOC dated 19^th November 2001, the Plaintiff complained twice. First, the Plaintiff complained against Ms Fok's “undesirable” duty roster for him, but Mr Yeung said in evidence the duty roster showed Ms Fok was not in error and he so informed the Plaintiff. Secondly, the Plaintiff in 1999 applied for leave for an overseas vacation, but Ms Fok failed to approve his application before she went on leave. The Plaintiff approached Mr Yeung who granted approval on Ms Fok's behalf. Mr Yeung later reminded Ms Fok to process staff leave applications as soon as possible. The Plaintiff claimed Sr Ho told him to approach her directly for future change of duty roster and leave applications.

53.Analysis  I find on balance the aforesaid conflict was not due to Ms Fok's bias against the Plaintiff, but due to their different perceptions as to the proper approach for change of duty roster and leave arrangements. There is no reason for Ms Fok to pick on the Plaintiff in 1999 when he admitted she then gave fair/honest appraisals of his work performance. In any event, the Hospital management resolved such conflict through counselling and administrative arrangements. But, in my view, the strain of such conflict contributed to the Plaintiff's application to transfer out of the AO.

54.I come now to the analysis which plainly shows (a) it was the Plaintiff's one-sided wish to join the GO when there was actually no vacancy for a full-time Clerk III vacancy there and (b) the Hospital never agreed to transfer him to GO on a full-time basis.

(4) April 2000

55.The Plaintiff claimed when he attended court on 13^th April 2000 with Mr Yeung for the criminal trial of the thief/robber he helped to apprehend at the Hospital, Mr Yeung told him the Hospital would try its best to transfer him out of the AO once there was a Clerk III vacancy. I reject the Plaintiff's evidence. The Hospital had intervened to resolve his conflict with Ms Fok. Although it was unsatisfactory and inconvenient, the Plaintiff was able to manage his limited receptionist duties at the AO. In April 2000 Mr Yeung had no reason to suggest transferring the Plaintiff out of the AO. Even on the Plaintiff's case, there is strangely no evidence that Mr Yeung and/or the Plaintiff followed up on the alleged promise from April to December 2000. The Plaintiff said he thought he could only apply for a transfer when there was a vacancy, but could not satisfactorily explain why he did not refer to Mr Yeung's alleged promise when, on his own case, he applied for the “vacancy” at the GO in late 2000.

(5) Clerk III position at the GO

56.In 2000, at Sr Loh's request, Sr Ho arranged for “Ah Kit” to work at the GO from 8:00am to 4:00pm. “Ah Kit” mainly dealt with pharmaceutical procurement and old clinical records at the ground floor GO office. He also handled stores/inventories at the 6^th floor GO store. About half a year later, he committed suicide. The Plaintiff thought there was a vacancy and wanted to apply. But I accept Sr Ho's evidence that by that time it was unnecessary to have additional manpower at the GO. Sr Loh discovered that with the assistance of her staff Ms Christine Lam (“Ms Lam”) and Ms Wendy Wai (“Ms Wai”) the GO could actually take up “Ah Kit's” store-keeping duties. The Plaintiff could not effectively challenge this as he confessed ignorance of “Ah Kit's” workload. Since it would not be cost-effective to re-open the post, Sr Ho cancelled it.

(6) Plaintiff's conversation with Ms Maggie Ng (“Ms Ng”)

57.Plaintiff's case  In mid-December 2000 the Plaintiff asked Ms Ng of the Administrative Department (the “AD”), who was also Sr Ho's secretary, whether the Clerk III post at the GO would be filled. When she replied in the affirmative, he indicated he wanted to apply, so she recommended him to write to Sr Ho. But in his letter to the EOC and his Statement dated 15^th October 2001 and 10^th October 2002 respectively, the Plaintiff claimed Ms Ng asked him whether he would recommend any person to apply and further told him the Hospital would normally attempt internal recruitment and only advertise or register with the Labour Department if no suitable internal candidate was found.

58.Hospital's case  Ms Ng gave a statement to the EOC saying that the Plaintiff mentioned to her during a casual conversation in December 2000 that no one was doing “Ah Kit's” work and asked whether there was any chance in applying for a transfer to that post. Ms Ng replied she did not know and it was up to the Hospital/Sr Ho to decide. Ms Ng added she had not received instructions to place any recruitment advertisement or register with the Labour Department for such post.

59.Analysis  I accept Ms Ng's hearsay version of events. It is not disputed that the Plaintiff approached Ms Ng to ascertain the status of the Clerk III post left by “Ah Kit”. There was no internal in-service recruitment/referral circular (the “Circular”) for such post and no evidence Sr Ho/Mr Yeung informed Ms Ng about any management decision in respect of such post. The Plaintiff confessed he did not know how Ms Ng knew about such alleged “vacancy”. The suggestion that she must have known because she was present at Mr Yeung's interview of the Plaintiff for his Clerk III job at the Hospital back in 1997 is unconvincing. I do not accept Ms Ng spoke to the Plaintiff in the manner he claimed.

(7) Internal recruitment

60.The Hospital argued that the absence of a Circular for the alleged Clerk III vacancy at the GO showed there was no such vacancy. After Mr Yeung joined the Hospital he implemented an internal recruitment/referral scheme. The Hospital's Human Resources Policy (the “Policy”) first prepared by Mr Yeung in 1998 provided inter alia (a) “醫院以盡量提升內部職員為目標而非從外聘用” (Chapter C1.1.3) and (b) “除“類別1”職位以外，當有職位空缺時,內部適合的職員會較外間應徵者獲優先考慮……” (Chapter C1.1.4). Mr Yeung said the Hospital would normally issue a Circular when there was a vacancy.

61.On the other hand, the Plaintiff claimed the Hospital invariably looked for in-service recruitment/referral as the first source of recruitment, but would not always issue a Circular. If there were no suitable internal candidate, the vacancy would then be open for outside recruitment.

62.I accept that vacancies for Clerk III posts could be filled through the Hospital's internal recruitment policy. Mr Yeung frankly said he could not recall whether a Circular would always be issued for clerical vacancies, so the absence of a Circular does not necessarily mean there was no clerical vacancy. But equally the existence of an internal recruitment policy does not show whether there was or was not actually a Clerk III vacancy at the GO. 

(8) Plaintiff's alleged conversation with Sr Ho

63.The Plaintiff claimed that on the day after he spoke with Ms Ng he sought out Sr Ho who confirmed someone would be employed to fill the Clerk III vacancy at the GO. He immediately informed Sr Ho he was interested and Sr Ho said she would consider his application. In his letter to the EOC dated 15^th October 2001, the Plaintiff further claimed Sr Ho told him he was doing very well at the AO and she wanted him to stay at the AO “and help the girls there”. Sr Ho denied such assertions.

64.I reject the Plaintiff's evidence. I have found the Hospital management had decided to cancel the Clerk III post left by “Ah Kit”. Further, given the Plaintiff's limited duties at the AO that put work pressure on other colleagues, I doubt whether Sr Ho would say he was performing very well at the AO. I also note the alleged promise by Sr Ho to consider the Plaintiff's application was never mentioned in the Letter referred to below.

(9) Plaintiff's application for transfer to the GO

65.On/about 18^th December 2000 the Plaintiff wrote to Sr Ho via Mr Yeung (the “Letter”) to apply for the Clerk III post at the GO. The Plaintiff stated it was time for him to have a change and learn other things. He said he had “lost all hopes and interests in working coherently with my superior though I keep trying and bearing”. The Plaintiff claimed this was a reference to his conflict with Ms Fok. He was anxious to leave the AO, so he emphasised in the Letter that his wife and children would be “happy to see me working free of pressure but with pleasure”. The Plaintiff asked Sr Ho to consider his application “in line with the hospital's wealth and my health”.

66.Sr Ho understood the Plaintiff to say in the Letter that if she allowed him to change his post and move to a new environment, he would be happy and without pressure, which would be good for his health and family. But, in my view, the reference to the Plaintiff's health would not have alerted Sr Ho/Mr Yeung as to his residual disabilities following his open-heart surgery. It is at best a reference to his general well-being. I also accept Mr Yeung's evidence that upon receipt of the Letter, he told the Plaintiff there was no Clerk III vacancy at the GO. Sr Ho did not reply to the Plaintiff's application in writing since the post was already obsolete.

(10) Plaintiff's alleged 2^nd conversation with Sr Ho

67.The Plaintiff claimed that on/about 31^st December 2000 he asked Sr Ho about his application and she told him the post would be offered to him. He further claimed Sr Ho told him that in the following week the AD would be looking for a candidate to fill his post at the AO and Ms Ng would attend to such task (see also the Plaintiff's Statement dated 10^th May 2002). In light of my findings in relation to the cancellation of the Clerk III post at the GO, I prefer Sr Ho's denial of such alleged conversation.

(11) January to April 2001

68.Plaintiff's case  The Plaintiff claimed Mr Yeung told him he would only be transferred to the GO after a replacement was found for his post at the AO and in the meantime Mr Yeung would be interviewing candidates for such purpose. In his letter to the EOC dated 15^th October 2001, the Plaintiff claimed he went to see Mr Yeung on 18^th September 2001 after Ms Ng told him “one of the girls” had signed an employment contract. Mr Yeung told him the girl was for another post and it would be at least March 2001 before a replacement might be found for him. When the Plaintiff chased Mr Yeung again on 15^th February 2001, he was told to wait. On 12^th March 2001, a new employee Ms Vicka Lai (“Ms Lai”) started to work at the Hospital's gift shop (the “GS”). Days later, Mr Yeung told the Plaintiff Ms Lai would replace him at the AO but she had to be observed for some time for her suitability. A week later Ms Lai was transferred to the AD and in late March 2001, a Mr Pat Cheung (“Mr Cheung”), a Clerk III then attached to the AD but formerly with the computer department (the “ITD”) since 1^st December 1997 (see the Plaintiff's Statement dated 10^th May 2002 and the Hospital's letter to the EOC dated 19^th November 2001), was suddenly transferred to the AO to perform most of the Plaintiff's duties.

69.Analysis  I reject the Plaintiff's evidence. Given the need to preserve the Hospital's image and hence to find a receptionist well-familiar with the Hospital's operator connections, departments/operations and names of its visiting doctors, I find it improbable the Hospital management would have considered a new employee Ms Lai to replace the Plaintiff at the AO. An internal recruit (as it turned out to be the case) was more probable, but I disagree Mr Yeung had to spend over 3 months to look for such replacement when a Clerk III post had no professional requirements.

70.I prefer the evidence of Mr Yeung/Sr Ho that the Plaintiff insisted on transferring out of the AO and bothered Sr Ho many times despite having been told there was no vacancy. As a result of his persistent “lobbying”, Sr Ho/Mr Yeung tried to find a solution to meet the Plaintiff's request but there was insufficient work for a full-time Clerk III at the GO. So if the Hospital were to consider transferring the Plaintiff to the GO, it would have to be on a part-time basis and other work would have to be arranged for him. Eventually, the Hospital reluctantly proposed the GO/OPD Transfer. This, I find, sensibly explains the lapse of over 3 months between the Plaintiff's initial request and the eventual transfer.

71.I accept the Hospital management did not formally consult but merely informed Sr Cheung, who accepted the proposed GO/OPD Transfer because she thought the Plaintiff would provide extra help and his work performance would not be affected by the part-time arrangement. At that stage Sr Cheung gave no thought as to whether it would be embarrassing or inconvenient for a male staff to bring patient records into doctors' outpatient consultation rooms (the “OPD Rooms”) when female patients were undergoing physical examinations inside (the “Inconvenience”).

72.I find the GO/OPD Transfer to be a reasonable management measure that served the Hospital's operational needs and accommodated the Plaintiff's request to leave the AO to join the GO. Sr Ho said (and I accept) although she knew the Plaintiff had a previous heart operation, she was unaware he had any residual disability. I further accept Mr Yeung told the Plaintiff about the proposed GO/OPD Transfer (to which the Plaintiff had no objection) in mid-March 2001 prior to transferring Mr Cheung to the AO to understudy the Plaintiff's work with a view to replacing him (see below).

(12) Mr Cheung

73.In the Hospital's letter to the EOC dated 19^th November 2001, Mr Yeung explained that Mr Cheung was found to be unsuitable for the ITD, so he was transferred to the AD to assist in a pharmaceutical project. He was deployed to the AO on 26^th March 2001 with a view to replace the Plaintiff and his handover period expired when the Plaintiff left the AO on 23^rd April 2001. In his Statement dated 7^th August 2001, the Plaintiff claimed such handover period was unusually excessive and the Hospital's decision to transfer Mr Cheung to the AO was to create a fait accompli to force him to accept the GO/OPD Transfer.

74.On balance I prefer Mr Yeung's/Sr Ho's explanation that the Plaintiff's post required familiarity with the Hospital's operations and should be filled by an employee who knew the job. I find it administratively responsible/sensible for the Hospital to arrange for Mr Cheung to familiarise himself with the work before actually transferring the Plaintiff out of the AO. I disagree the GO/OPD Transfer was to contrive the Plaintiff's acceptance of his new posts or (if he did not accept his new posts) his resignation.

(13) 11th April 2001

75.On 11^th April 2001, Mr Yeung gave a memo to the Plaintiff for the GO/OPD Transfer with effect from 23^rd April 2001. His daily working hours would be from 11:00am to 7:00pm on weekdays and from 9:00am to 1:00pm on Saturdays, which would be split between (a) patient registration at the OPD from 11:00am to 1:00pm on weekdays and Saturdays and 5:00pm to 7:00pm on weekdays and (b) stores/inventories at the GO from 2:00pm to 5:00pm on weekdays and 9:00am to 11:00am on Saturdays. He was to report to Sr Cheung and Sr Loh. Since 23^rd April 2001, the Plaintiff worked at the OPD and the GO at the above working hours.

76.Plaintiff's case  The Plaintiff only applied to work at the GO. He believed working at the OPD would be unsuitable for him due to the Inconvenience. But Mr Yeung told him the OPD was short-staffed and promised to let him return to full-time work at the GO when the Hospital recruited more OPD staff from the Form 5 graduates after the HKCEE examinations. Mr Yeung recognised it was a detriment to work for 2 departments, but said the additional half hour for lunch and only 4 hours of work on Saturdays (ie 44 instead of 48 hours per week) would be good for the Plaintiff and his health, and he would have more time to rest (ie sleep late and avoid congested traffic). Mr Yeung refused the Plaintiff's request to remain at the AO, saying that Mr Cheung had already filled his post and the Plaintiff could resign if he did not agree to the GO/OPD Transfer.

77.Hospital's case  Mr Yeung said the Plaintiff was fully informed of the details of the GO/OPD Transfer and he agreed to work at both the GO and the OPD.

78.Analysis  I agree the Plaintiff knew there was no “normal” vacancy or full-time opening at the GO and the GO/OPD Transfer was the only available option offered by the Hospital, and he agreed to it. I have no doubt the Hospital arranged the GO/OPD Transfer to match his wish to leave the AO and join the GO with the Hospital's operational needs, which had nothing to do with the Plaintiff's medical/health disability arising from his heart condition.

79.I am also satisfied the GO/OPD Transfer and the Hospital's refusal to transfer the Plaintiff to the GO on a full-time basis were reasonable management decisions consistent with the Policy. Chapter C7.4.1 provided “所有職員均可申請調職,但須視乎 : (a)兩個有關部門是否同意; 或(b)是否有職位空缺可供調職職員擔任”.

80.I disagree the OPD was short of clerical staff or that Mr Yeung gave such excuse to press the Plaintiff to agree to the GO/OPD Transfer. In his Statement dated 10^th May 2002, the Plaintiff claimed Sr Cheung told him Mr Yeung specifically arranged the GO/OPD Transfer since the OPD was short-staffed, but the Plaintiff did not refer to such dialogue in his witness statement or evidence. There is no evidence Sr Cheung asked for additional clerical manpower and the Hospital management did not formally consult her on transferring the Plaintiff to the OPD on a part-time basis. Had the OPD been short-staffed on the clerical side, Sr Cheung/Mr Yeung would have been more proactive over clerical staff recruitment.

81.However, the Plaintiff referred to the Hospital's 優質服務保證委員會第二次會議dated 5^th July 2001 during which the OPD's nurse representative reported that the OPD was too busy to provide the best service. She recommended adding 2 nurses at the nursing station. Mr Yeung stated during the meeting the situation should improve with the planned recruitment of more health care assistants. In my view, the concern expressed at the meeting related to nursing and not clerical staff, which does not support the Plaintiff's contention.

82.Further, according to Mr Yeung, the OPD operated 3 shifts each day from 7:00am to 3:00pm, 3:00pm to 11:00pm, and 11:00pm to 7:00am respectively, with 12 staff (of whom 5 were nursing staff) on each shift. The busiest hours were from 9:00am to 12:00 noon and from 7:00pm to 11:00pm, so the Plaintiff's morning shift at the OPD from 11:00am to 1:00pm overlapped with the tail-end of the morning busy hours. This supports the Hospital's contention that the GO/OPD Transfer was mainly to accommodate the Plaintiff's “lobbying” to leave the AO.

83.I am also persuaded Mr Yeung did not promise to let the Plaintiff return to GO on a full-time basis upon recruitment of more staff after the HKCEE examinations. Given the lack of any full-time vacancy at the GO, there is no reason for Mr Yeung to make such promise.

84.I reject the Plaintiff's assertion that Mr Yeung said the transfer arrangement was good for his health. There is no reason for him to refer to the Plaintiff's health at all. By April 2001 it was more than 2 years after the Plaintiff's open-heart surgery. In my view, since his residual disabilities were not noticeable and did not feature in his daily work at all, the Plaintiff's allegations in this regard are contrived and unconvincing. There was no discrimination “on the ground of” the Plaintiff's medical/health disability.

85.In coming to the above conclusion, I note that Mr Yeung fairly stated in his letter to the EOC dated 19^th November 2001 that “I did mention to the complainant that this might be beneficial to him as he could have longer hours of sleep extending through the morning and did not need to rush for early shift duties. ……”. It is, however, far-fetched to say such comment was in fact a reference to the Plaintiff's heart condition and residual disabilities.

86. In his Statement dated 10^th May 2002, the Plaintiff stated that on the 1^st day he started to work at the OPD, Sr Cheung told him rather impolitely she knew he had heart disease and should not get impatient, so he could work slowly but must not make any mistake. However, the Plaintiff did not refer to such dialogue in his witness statements or evidence. I reject such evidence and prefer Sr Cheung's evidence that she knew he had a previous heart operation, but was never told he was feeling unwell. Further, the Plaintiff also helped in moving heavy loads at the OPD, eg transferring patients across hospital beds or stacking up patients' records, but all OPD staff (who were female apart from the Plaintiff) had to do such work, so the Plaintiff's medical/health condition did not enter into the picture.

87.I further do not accept that on 11^th April 2001 the Plaintiff already told Mr Yeung about the Inconvenience. I find that at that time the Plaintiff (who had not worked at the OPD before) did not fully realise this aspect. Indeed, even Sr Cheung, who as supervisor was well aware of the OPD operations, gave no thought then to this consideration. Mr Yeung also did not think there would be any Inconvenience since the OPD Rooms had screens to preserve female modesty and there were light signals outside the OPD Rooms to signify patient consultations were underway. In my view, it was only after the Plaintiff started working at the OPD that the OPD doctors told the nurses who in turn reflected the Inconvenience to Sr Cheung (see Sr Cheung's Statement of March 2002), so such awkwardness was only discovered after the Plaintiff started to work at the OPD.

88.Moreover, I am not persuaded Mr Yeung set out to tempt the Plaintiff's acceptance of the GO/OPD Transfer with additional time for lunch and shorter working hours on Saturday. The hours were simply dictated by the opening hours of the GO store on the 6^th floor located within the sisters' quarters. The sisters' quarters (and hence the GO) would open after lunch only at 2:00pm, so the Plaintiff necessarily had a full hour for lunch when his shift ended at 1:00pm. The sisters' quarters (and hence the GO) were closed on Saturday afternoon, so the Plaintiff was only required to work 4 hours in the morning.

89.I find as a fact (a) the meeting between the Plaintiff and Mr Yeung on 11^th April 2000 was as described by Mr Yeung and (b) the GO/OPD Transfer and the Plaintiff's working hours following such transfer were not “on the ground of” the Plaintiff's health/medical disability. I am satisfied the Hospital has given an adequate and satisfactory explanation.

(14) Plaintiff's performance at the OPDand the GO/RB Transfer

90.Plaintiff's duties at the OPD  The Plaintiff claimed that his duties at the OPD included registering patients, checking their identity cards, inputting patient particulars into the computer system, taking patients' temperature by thermometer, filling in patient record cards, retrieving patient records, delivering patient records to the OPD Rooms, paging doctors to attend the OPD and taking incoming telephone calls.

91.Hospital's case  The Hospital claimed it was mainly due to the Plaintiff's substandard work performance and his failure to satisfy his job requirements at the OPD that he was transferred to the RB. It was not “on the ground of” the Plaintiff's medical/health disability.

92.The Hospital claimed the Plaintiff's poor work performance resulted in complaints by Dr Lam Kin Fai (“Dr Lam”) and other doctors. The gist of their complaints was that a male OPD staff mishandled telephone bookings for medical procedures and hospitalisation. Sr Cheung/Mr Yeung were convinced it was the Plaintiff who made the mistakes since (a) he was the only male staff at the OPD and (b) Mr David Ng (“Mr Ng”), the son of the Hospital's nurse manager and an unpaid summer student/voluntary worker attached briefly to the OPD, had been warned not to take incoming calls. So Sr Cheung orally reported this and the Inconvenience to Mr Yeung.

93.Due to concern over the Plaintiff's work performance and in order not to compromise the service provided by the OPD, the Plaintiff had to be transferred to a post that required simple job competency and skills that he already possessed. So the Hospital management eventually decided to transfer the Plaintiff out of the OPD to work as a receptionist clerk at the RB.

94.Plaintiff's case  The Plaintiff denied his work performance at the OPD was substandard. In his statements to the EOC dated 10^th May and 12^th June 2002, he claimed he was well able to handle the work at the OPD and never made any mistake or received any complaint. Other clerks, nurses or volunteers at the OPD made mistakes over bookings and Sr Cheung would reprimand them. His OPD colleagues admired his work performance and, when he was to be transferred to the RB, even asked him why he did not remain at the OPD to help them. The Plaintiff compared himself with the AO's Mr Cheung who, despite a month's handover, made mistakes.

95.The Plaintiff questioned the veracity of Dr Lam's complaint. He did not recall taking any telephone call from Dr Lam, and said it might have been Mr Ng or other male staff who took such call. In his Statement dated 12^th June 2002, the Plaintiff further claimed bookings for hospital admission were handled by the AO, so Dr Lam's complaint had nothing to do with the OPD. The Plaintiff claimed he did not know why he was transferred out of the OPD so quickly when it was short-staffed, but accepted the OPD was not suitable for male staff like him.

96.Medical/health disability?  The above overview suggests a dispute as to (a) whether the Plaintiff's work performance was substandard and/or (b) whether he made mistakes in his work. However, save for the matter raised in paragraph 111 below, there is no suggestion the GO/RB Transfer had any connection with the Plaintiff's heart condition and/or medical/health disability. But since the Plaintiff suggested the GO/RB Transfer might have some relevance to his claim of discrimination by victimisation, I will make findings of fact on the subject.

97.Doctors' complaints In his statement to the EOC dated 27^th March 2002 (signed on 25^th April 2002), Dr Lam said that about half a year ago he telephoned the OPD (the “Tel Call”) to arrange for admission of his patient(s) to the Hospital for medical examination(s). He waited for over 10 minutes but no one took his call. He had to ask the operator to fetch an OPD staff to answer the call. Eventually a male OPD staff answered Dr Lam who demanded what took him so long. The male staff replied he was the only one around and “做唔掂”. Dr Lam said he would lodge a complaint to the Hospital. During the Tel Call, Dr Lam booked medical examinations (ie endoscopic examinations)/hospitalisation for his 2 patients, but when his patients later turned up at the Hospital it was discovered the OPD male staff had failed to make the registrations. Dr Lam complained to the Hospital.

98.The above is supported by Sr Cheung's statement to the EOC dated 14^th and 15^th March 2002 (signed on 26^th March 2002). She said that at the time of Dr Lam's complaint, the Plaintiff was the only male staff at the OPD. Further, apart from Dr Lam, other doctors also alluded to having similar problems although they did not make formal complaints. Sr Cheung explained in evidence that other OPD staff told her other doctors also complained that the telephone bookings handled by a male OPD staff during that time were confusing.

99.Male OPD staff  The Plaintiff accepted he was the only male OPD staff on duty at the 5:00pm to 7:00pm shift and (apart from Mr Ng) at the 11:00am to 1:00pm shift. He did not know if there were other male staff at the OPD at other times (eg from 1:00pm to 5:00pm). I accept Sr Cheung's evidence that the Plaintiff was the only male staff at the OPD at the material time. At first the Plaintiff claimed it was possible male colleagues from other departments might pass by and answer OPD's incoming telephone calls, but in the end he admitted other male labourers/colleagues passing by would not do so.

100.Date/time of Dr Lam's complaint  Dr Lam in his statement to the EOC claimed that the Tel Call happened about half a year ago (the exact date of which he could not remember). The Plaintiff argued that since Dr Lam's statement was dated March/April 2002, the Tel Call must have happened in/about September 2001, so he could not have taken the Tel Call since he had ceased to work at the OPD from 16^th July 2001. The short answer is that Dr Lam insisted the incident did occur but frankly admitted he could not be precise about the date. Moreover, although Sr Cheung could not remember the date of Dr Lam's complaint, she actually liaised with him after receiving his complaint. In recounting the incident to Sr Cheung, Dr Lam told her the Tel Call happened at about 5:00pm to 7:00pm. The Plaintiff was undisputedly the only male OPD staff on duty during that shift, so he must have been the one who took the Tel Call.

101.Mr Ng  The Plaintiff argued Mr Ng might have taken the Tel Call. I accept Mr Yeung's evidence that Mr Ng was an unpaid summer student/volunteer attached to the OPD for 2-3 days a week over 1-2 months in the summer of 2001. He would usually arrive at about 9:00am-10:00am and leave at about 3:00pm-4:00pm. I further accept Mr Ng was at the OPD to observe/learn about its operations and to do voluntary work. Both Mr Yeung and Sr Cheung said his work involved simple tasks and he was expressly prohibited from taking incoming calls or dealing with doctors' bookings or patients' records.

102.All the Plaintiff could say was that he had seen Mr Ng helping out at the OPD and it appeared he had similar duties as the Plaintiff. I reject the Plaintiff's evidence as vague and unreliable. The Plaintiff said he was busy and did not pay attention to Mr Ng's every act. He did not even know whether Mr Ng worked full-time or part-time or whether he was a volunteer (see the Plaintiff's Statement dated 10^th May 2002) I find he had no idea of the scope of Mr Ng's role at the OPD. On the other hand, Sr Cheung said she had never seen Mr Ng answering incoming calls. The Plaintiff claimed he saw Mr Ng on the telephone, but confessed he did not know whether Mr Ng was taking incoming calls. I find the above insufficient to infer Mr Ng took incoming calls on bookings for medical examinations/hospitalisation.

103.OPD/AO  The Plaintiff denied handling any booking for endoscopic examination/hospitalisation after 5:00pm at the OPD. He said that whilst the OPD handled bookings for medical examinations by the OPD's visiting doctors, it was the AO that handled bookings for hospital admission. He claimed that if any visiting doctor wished to have his patient hospitalised briefly for, say, an endoscopic examination, he should have called the OPD to book the appointment for the examination and also called the AO to register for hospital admission.

104.In his Statements dated 10^th May and 12^th June 2002, the Plaintiff further claimed that Dr Lam, not being an OPD doctor, did not have an appointment book. So if his patient required a medical examination, such patient would have to attend Dr Lam's clinic in Causeway Bay and Dr Lam would have to telephone the AO and not the OPD to arrange for hospital admission for medical examination since only the AO had the appointment book for advance bookings for hospital admission.

105.I reject the Plaintiff's evidence. Sr Cheung as supervisor of the OPD did not question the propriety of Dr Lam's mode of booking endoscopic examinations and hospitalisation for his patients through the OPD. It was not put to Sr Cheung or Mr Yeung in cross-examination that Dr Lam was not a visiting doctor of the OPD. In any event, Sr Cheung, Mr Yeung and Sr Ho plainly knew Dr Lam. I accept he had clinical privileges at the Hospital. There is no doubt that even on the Plaintiff's case bookings for medical examinations were made through the OPD (see also discussion in paragraph 103 above and paragraph 106 below). In my view, the one-stop booking at the OPD described by Dr Lam is more practical and sensible in ensuring that the booking for the medical examination and the hospitalisation period are matched. There should be no difficulty with the availability of computer handling. 

106.Gynaecological examinations  The Plaintiff further claimed he was not responsible for booking endoscopic examinations because after an embarrassing incident involving a patient telephoning to book a gynaecological examination, the OPD nurses told him to let them handle such bookings. However, there is no evidence that the endoscopic examinations booked by Dr Lam were gynaecological examinations. Further, the Plaintiff would not have been able to predict whether a ringing telephone would herald a request for gynaecological examination. I find that the Plaintiff (the only male OPD staff at the material time) answered the Tel Call and did not refer the call to any nurse. Dr Lam also confirmed he made bookings with the male OPD staff directly.

107.Analysis  Dr Lam did not give evidence, but Sr Cheung liaised with him on his complaint and he recounted the incident to her. Having carefully considered its hearsay nature, the factors in section 49 of the Evidence Ordinance Cap.8 and the totality of the evidence, I accept Dr Lam's statement and also Sr Cheung's evidence. Dr Lam said the male staff who answered the Tel Call told him he was the only one around and “做唔掂”. Such response is unlikely to have come from any other male colleague passing by or Mr Ng who had no specific job responsibilities.

108.The Plaintiff in his Statement dated 10^th May 2002 obliquely suggested it might have been Mr Cheung at the AO who took the Tel Call. In light of the above analysis, I reject such suggestion. There is no evidence that Dr Lam, who plainly had clinical privileges at the Hospital, mistook the OPD for the AO or vice versa.

109.I therefore conclude on balance it was the Plaintiff who took the Tel Call and who made the mistake in failing to book the medical examinations/hospitalisation for Dr Lam's 2 patients. I further accept there were informal complaints from other doctors relating to bookings made by the Plaintiff, which Sr Cheung got to know through other OPD staff. In the circumstances, I agree with Sr Cheung and Mr Yeung that the Plaintiff's work performance at the OPD did not meet his job requirements. As seen below, the GO/RB Transfer was due to (a) the Plaintiff's substandard work performance (so as not to compromise the Hospital's services) and (b) the possibility of the Inconvenience. I reject the Plaintiff's bigoted perception of his outstanding work performance at the OPD. His criticisms of the alleged mistakes of his OPD colleagues and of Mr Cheung do not help in the assessment of his own work performance, but merely highlights an unwillingness to recognise his own shortcomings whilst working at the OPD.

(15)  GO/RB Transfer

110.In/about May 2001, the RB was created for answering enquiries by telephone and from visitors who entered the Hospital through the Old Wing. When its service hours were extended to 8:00pm with the installation of a computer, clerical services were required. The Hospital management arranged for the Plaintiff to be a receptionist clerk at the RB, and his work would be similar to what he had been doing at the AO.

111.Plaintiff's case  The Plaintiff in his letter to the EOC dated 15^th October 2001 claimed that on 10^th July 2001 Mr Yeung told him all OPD doctors complained against him with no details given, so in order to protect him from further complaints Mr Yeung transferred him to the RB. “With effect from 19/7/2001, in view of my health, [Mr Yeung] remarked ‘4 p.m. to 8 p.m.' suits [the Plaintiff] most.”

112.Analysis  I reject the Plaintiff's above assertion which he did not refer to in his witness statements or evidence and which contradicts his evidence that he did not know why he was transferred to the RB so shortly after he joined the OPD. I accept Sr Cheung, Mr Yeung and the Hospital management genuinely believed the complaints by Dr Lam and the other doctors were directed at the Plaintiff. At that time, the Plaintiff had not yet complained to the EOC, so the Hospital's actions could not have been coloured by any such concern. I prefer Mr Yeung's evidence that on/about 12^th July 2001 when he gave the memo of transfer to the Plaintiff, he explained the GO/RB Transfer was because the Plaintiff was not suitable for the OPD and made mistakes over bookings that affected the Hospital's operations, ie his work performance was substandard (see also the Hospital's letter to the EOC dated 21^st September 2001). I further find the Plaintiff did not express any unwillingness over the transfer.

113.The memo of transfer stated that from 16^th July 2001 the Plaintiff would be posted to store-keeping duties at the GO from 12:00 noon to 4:00pm and to receptionist duties at the RB from 4:00pm to 8:00pm, which meant his working hours would revert back to 48 hours per week and the additional half hour for lunch was cancelled. The memo reminded that the duty nature of clerical staff might vary according to the Hospital's operational needs and that the Plaintiff's posting was subject to arrangement of the Hospital management. I find such provision consistent with Chapter C7 of the Policy and the terms of the Contract. I accept that for the GO/OPD and GO/RB Transfers, the Hospital tried to match its operational needs with the Plaintiff's request to join the GO and/or his skills/competency. The changed working hours and the need to work at different posts had nothing to do with the Plaintiff's disability.

(16) Mr D Chan

114.Since the Plaintiff claimed Mr D Chan was the appropriate comparator and he should be able to share the Late Shift with Mr D Chan on rotation, I set out below the circumstances under which Mr D Chan came to be transferred to the RB to work as a receptionist clerk on 1^st September 2001 with working hours from 8:00am to 4:00pm.

115.In fact, Mr D Chan first joined the Hospital on probation as a Pastoral Care Officer, but his work performance was not satisfactory. On 17^th March 2001 Mr Yeung/the Hospital wrote to him to say that “…… management requires further assessment before considering to offer you the permanent employment terms”. His probation period was extended for 3 months and confirmation of his suitability for the post was subject to satisfactory performance during the extension period. But Mr D Chan could not finish the pastoral care course, which was a basic job requirement for a Pastoral Care Officer, so he could not remain in the Pastoral Care Unit. On 14^th August 2001 the Hospital discontinued the employment offer to Mr D Chan of Pastoral Care Officer with effect from 21^st August 2001 and noted his performance during the extended probation period did not reach the expected standard, but as a gesture of goodwill the Hospital offered him employment as a Clerk III.

(17) Plaintiff's alleged request for shift rotation

116.Plaintiff's case  In his Statement dated 10^th May 2002, the Plaintiff claimed that since the GO/OPD Transfer he requested Sr Cheung/Mr Yeung many times to let him go off work at 4:00pm for 2 days each week to enable him to attend computer and Italian language courses, but Mr Yeung refused his requests, saying his working hours were fixed and he could not share his shifts with others. Mr Yeung further told him not to attend those courses as they were unnecessary and if he did not wish to accept his shift arrangements he would have to leave the Hospital since Mr Cheung had taken up his post at the AO. The Plaintiff claimed that when he was told of the GO/RB Transfer on 12^th July 2001, he mentioned to Mr Yeung about rotation of shifts, but Mr Yeung refused his request.

117.On 7^th August 2001, the Plaintiff lodged the EOC Complaint. In his Statement of the same date, he proposed the Hospital could arrange for his “colleagues” to share the Late Shift with him on rotation basis. The Plaintiff claimed that in early September 2001, he asked Mr Yeung whether he could share the Late Shift with Mr D Chan on rotation basis, but Mr Yeung unreasonably refused by saying the existing arrangement was good for his health and he could resign if he were not satisfied with such arrangement. At the EOC Meeting, the Plaintiff suggested sharing the Late Shift with Mr D Chan on a rotation basis, but Mr Yeung told him the Hospital could not arrange for such rotation because his post was specially created for him.

118.The Plaintiff also recalled Mr Yeung said he did not have the chance of liaising with Mr D Chan about the proposal, but he could not remember whether it was said before or after the EOC Meeting. Mr Yeung did not contact him on the subject thereafter. The Plaintiff followed-up with Mr Yeung/Sr Ho from time to time and they kept saying he would have to wait.

119.Hospital's case  The Hospital claimed the Plaintiff never directly requested Mr Yeung to let him share the Late Shift with Mr D Chan on rotation basis. At the EOC Meeting, the Plaintiff indicated for the first time he wanted to share the Late Shift with 2 Clerk III at the GO, Ms Ann Wong (“Ms Wong”) and Ms Wai, which proposal was declined by Mr Yeung (see the Hospital's letter of 21^st September 2001 which explained Ms Wong and Ms Wai had specific duties that required special knowledge and experience). The Plaintiff only referred to Mr D Chan when it became obvious he could not rotate shifts with them. In his Statement to the EOC on 15^th October 2001, the Plaintiff claimed Mr D Chan was transferred to the RB for unsatisfactory performance and “[it] is clear that the Hospital had no intention to arrange others to share late shifts with me.” In his Statement dated 10^th May 2002, the Plaintiff questioned why Mr D Chan did not have to work the Late Shift and claimed Mr Yeung said it was because of the Plaintiff's health that the Plaintiff had to work the late Shift on a long-term basis. Mr Yeung gave evidence that the Hospital could not agree to the Plaintiff's request because his post was created for him and it involved store-keeping duties at the GO as well as receptionist duties at the RB. It was not known whether Mr D Chan wished to work for both departments, and he would have to become familiar with the store-keeping duties before the Hospital could consider the Plaintiff's proposal.

120.Analysis  Even on the Plaintiff's own case (which I do not accept), when he asked for rotation of the Late Shift at the time of (a) the GO/RB Transfer in July 2001 and (b) the EOC Complaint in August 2001, he could not have been referring to Mr D Chan who only joined the RB in September 2001. I find the Plaintiff first requested for rotation of shifts with Ms Wong and Ms Wai at the EOC Meeting and his request for rotation of shifts with Mr D Chan came afterwards (ie briefly mentioned in his Statement on 15^th October 2001 and more specifically in his Statement on 10^th May 2002). Had the Plaintiff referred to Mr D Chan at the EOC Meeting or earlier, there is no reason why the Hospital did not mention this when recounting the Plaintiff's request and explaining why the Plaintiff could not rotate shifts with Ms Wong and Ms Wai in its letter of 21^st September 2001. The suggestion of rotating the Late Shift with Mr D Chan was plainly an afterthought when the Hospital reasonably declined rotation of shifts with Ms Wong and Ms Wai.

121.Since Mr D Chan's working hours were from 8:00am to 4:00pm, any rotation with the Plaintiff's Late Shift meant he not only had to take up the Late Shift at the RB but also the Plaintiff's shift at the GO. But the Plaintiff's shift arrangements were specifically made to meet his circumstances. There is no evidence on the ability of Mr D Chan (who originated from the ITD and who previously dealt with data-input for a pharmaceutical project) in handling store-keeping duties or of his interest in joining the GO. Sr Ho quite reasonably pointed out the Hospital administration could not accommodate the subjective wishes of a single staff without considering the objective needs of the Hospital, which stance was in line with Chapter C7 of the Policy. I accept her evidence that rotation of shifts required careful consideration, discussion and planning and could not be implemented instantaneously on request by staff. In not effecting any rotation of the Late Shift between the Plaintiff and Mr D Chan, I do not find the Hospital unreasonable and even if it were (which I disagree), it had nothing to do with the Plaintiff's medical/health disability, which never featured in his work. I do not accept Mr Yeung regarded the Plaintiff's disability as a ground for the existing arrangement or for asking the Plaintiff to resign if he did not accept such arrangement.

(18) Summary

122.I am of the view the Hospital did not arrange the GO/OPD and GO/RB Transfers or impose the Plaintiff's “terms of employment” “on the ground” of his medical/health disability. The Plaintiff has failed in his claim on disability discrimination. However, for the sake of completeness, I shall deal with this issue of the relevant comparator briefly.

(e) Comparator(s) and alleged less favourable treatment

(1) Law

123.Section 8 of the DDO provides inter alia that “[a] comparison of the cases of persons with or without a disability under section 6 shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other”. Where it is not possible to identify an actual comparator, a hypothetical comparator may be used (see section 6 of the DDO). Here, Mr Chan confirms the Plaintiff only puts forward Mr D Chan as the actual comparator, so it is unnecessary for this court to consider other staff referred to previously by the Plaintiff as comparators. Mr Chan has not addressed the court on any notional comparator.

(2) Relevant comparator

124.In making the comparison with a view to deciding whether the Plaintiff has been subjected to less favourable treatment, it is necessary to compare like with like, ie to compare the treatment given to the Plaintiff with the treatment which would have been afforded to a Clerk III having the relevant circumstances of the Plaintiff that are the same or not materially different except for his medical/health disability, and not just any disability-free Clerk III.

125.In respect of the GO/OPD Transfer, a relevant circumstance would be the employee's wish to leave his current department to join a department with no full-time vacancy. For the GO/RB Transfer, this remained a relevant circumstance, but other relevant circumstances include the job the employee was doing, his competence/skills and the complaints in respect of his work performance. It is only on such basis that the court can determine whether the differential treatment was on the ground of disability. 

126.Mr Chan SC submits (and I agree) the very different background circumstances in which Mr D Chan and the Plaintiff found their way to the RB (even though they were both Clerk III) show that Mr D Chan was not a suitable comparator. There is no evidence he wanted to leave his current post for a department with no full-time clerical vacancy. Although Mr D Chan's work performance at the Pastoral Care Unit was unsatisfactory, the main reason why he was transferred to the RB was because he failed to satisfy the basic job requirement of a Pastoral Care Officer, namely, to complete the pastoral care course. I find Mr D Chan does not qualify as an appropriate comparator.

127.There is also no basis for suggesting the Hospital would treat the hypothetical comparator differently from the Plaintiff when the Hospital's decisions for the GO/OPD and the GO/RB Transfers were based on exigencies of the posts as a result of inter alia the employer's operational/manpower considerations, the staff's own request for transfer, the staff's competency/skills and the impact on service rendered by the relevant departments as a result of complaints against the staff. In short, the Plaintiff did not suffer from less favourable treatment.

VI.  Victimisation

(a) Synopsis of the Plaintiff's case

128.The Plaintiff claimed that contrary to section 7 of the DDO, the Hospital treated him less favourably than it treated or would treat other persons by reason that he had lodged the EOC Complaint. He received outstanding appraisal Reports from Ms Fok from 1998 to 2000 (the “Early Reports”). After the EOC Meeting, the Hospital had a secret agenda (masterminded by Mr Yeung) to victimise the Plaintiff  by causing Ms Fok to prepare (a) Fok's Report that contained inaccurate/unfair remarks concerning the Plaintiff's work performance at the AO and (b) the Reports for other AO staff at about the same time to camouflage Fok's Report as part of the AO's annual appraisal Reports. The Plaintiff claimed (but not pleaded) the Hospital caused Sr Cheung to prepare a Report for the appraisal period from 23^rd April to 15^th July 2001 (“Cheung's Report”) to downgrade his work performance at the OPD. The Hospital further caused Sr Fong to prepare an inaccurate/unfair appraisal Report in respect of the Plaintiff's work performance at the GO for the appraisal period between 23^rd April and 6^th December 2001 (“Fong's 1^st Report”). Further, since the EOC Complaint the Plaintiff was closely monitored by the Hospital. He frequently received disturbing/annoying telephone calls and was instructed by his supervisor (who had a bone to pick with him) to deliver heavy objects for no cause.

129.The aforesaid steps by the Hospital were made in retaliation of the EOC Complaint and for the purpose of sending Fok's, Cheung's and Fong's 1^st Reports to the EOC to deal with the EOC's enquiries and paving the way for wrongfully dismissing the Plaintiff on 24^th July 2002 on the pretext of his allegedly poor work performance as shown in the appraisal Report the Hospital caused Sr Fong to prepare on the same day (“Fong's 2^nd Report”). Fok's, Cheung's and Fong's 1^st and 2^nd Reports are collectively called the “Plaintiff's Reports” below.

(b) Synopsis of the Hospital's case

130.The Hospital's staff performance appraisal system (the “Scheme”) was a staff development scheme intended to help staff identify their strengths/weaknesses to improve in their work performance. In/about 1998 the Scheme applied to the nursing grades and was only extended to inter alia clerical staff in/about 2000, so the Early Reports did not exist. The Plaintiff's Reports, which were fair and correct, showed the Plaintiff's work performance was unsatisfactory and substandard. Yet the Plaintiff gave himself full “A” grades in a self-appraisal Report (the “Self-Appraisal Report”) that evidenced his lack of insight into or his refusal to recognise his own shortcomings. The Hospital gave the Plaintiff several chances to improve but gave up hope after he failed to do so. The Plaintiff's attitude turned hostile on 24^th July 2002 and the Hospital dismissed him by payment in lieu of notice with immediate effect.

(c) Preliminary observation

131.As a matter of law, the court is not concerned with whether an employment-related act/decision is unfair, unreasonable, capricious or inconsistent with previous dealings. Such act/decision amounts to discrimination by victimisation only if it inter alia breaches section 7 of the DDO. The Plaintiff contended herein that the proper inference from the factual matrix was that during a period of about 1 year the Hospital management (as personified by Mr Yeung) at different times directed Ms Fok, Sr Cheung and Sr Fong to act in concert with the management to give false Reports that downgraded the Plaintiff's work performance in retaliation against the EOC Complaint and to pave the way for his dismissal at the end of that period. As will be seen from the analysis below, I find such inference unconvincing and contrived.

(d) Annual appraisal Reports

132.To properly consider the Plaintiff's assertions, it is necessary to first understand the Report form and the implementation of the Scheme. To fill out the annual appraisal Report, the direct supervisor would have to observe the staff's work performance over the appraisal period (usually a calendar or financial year). The standard Report form had 16 performance criteria for which the supervisor could give “A” to “E” grades according to a grading guide (the “Explanatory Note”). The supervisor would then conduct an appraisal interview with the relevant staff. Both or either of them could give comments and/or sign the Report if they wished. The completed Report would be submitted to Mr Yeung who would meet the staff if his work performance was particularly outstanding/poor or if the supervisor and the staff had disputes during the appraisal interview. Mr Yeung might add his comments in the Report if he wished.

(e) Scheme

133.The Plaintiff claimed that from 1998 to 2000 Ms Fok gave him outstanding Early Reports, which the Hospital concealed in order to downgrade his work performance in the Plaintiff's Reports in retaliation against the EOC Complaint. This is denied by the Hospital.

134.In 1997 Mr Yeung proposed the Scheme to help staff improve by identifying their strengths/weaknesses. A pilot scheme was introduced for nursing officers and a task group was set up. Clause 2.1 of the minutes of 部門主管特別會議 of 19^th August 1998 (the “1998 Meeting”) provided that “為了改善職員的工作表現，本院於去年推出了第一階段的職員評估制度，對象為護士主任職級; 而由九八年九月一日起，此評估制度將會全面實施於全院職員” (my emphasis). “第一階段的職員評估制度” in the minutes clearly showed the Scheme could not have been fully in place in 1997 for the Reports to be completed in 1998 after the expiry of the appraisal year.

135.However, the Plaintiff suggested clause 2.2 of the minutes (ie “已編訂的評估表格分為兩類:- (a) 一為用作評核一般專業職系; (b)一為用作評核一般非專業職系員工”) which followed Chapter N1.8.1 of the Policy showed the Scheme was in place for non-professional staff (including the Plaintiff) by the time of the 1998 Meeting.

136.Sr Cheung, Sr Ho and Sr Fong had limited recollection of the year when the Scheme was implemented for the Hospital's clerical staff, but, in my view, what they did recollect was consistent with Mr Yeung's evidence below which I accept :

(a) Sr Cheung confirmed the Scheme was first applied to the nursing grades with extension to other staff about 2 years later. She at first assumed from the above minutes that the standard Report forms were in use by September 1998, but careful reading showed the minutes only referred to future implementation of the Scheme (the exact year of which she could not recall). 

(b) Sr Ho made a similar assumption but later clarified she did not (i) read any Report before 2000 (she became the Hospital's sister superior in 1999) or (ii) know whether Mr Yeung received any Reports in relation to non-nursing staff before 2001. Sr Ho said she was also the Hospital's sister superior in the 1980s, so her recollection about timing might be unclear, and Mr Yeung was in a better position to say when the Scheme was actually implemented.

(c) Sr Loh did not mention about the Reports when she handed over supervision of the GO to Sr Fong in 2001. Sr Fong understood Sr Loh did not prepare any Reports because it was unnecessary to do so at that time (ie the Scheme was first implemented for the nursing grades) and the Hospital management requested submission of the Reports for the GO clerical staff only after Sr Fong became the supervisor.

137.Mr Yeung explained there was no standard Report form as at the 1998 Meeting (see clause 2.5 of the minutes stating “為了盡快落實此報告的模式，楊經理會連同[4 other Hospital staff]成立一小組，根據楊經理所建議的內容，編訂一中文版的報告表，供各同事使用”). The Hospital Authority's English appraisal form that was used in the pilot scheme was too complicated, so the Hospital accepted the task group's proposal to have a simple Chinese form. Hence, the minutes noted “<會後跟進 : 經小組成員研討後，已編訂“聖保祿醫院職員品評表”，並已分發至各部門於九八年九月一日正式使用。>”. Indeed, on 2^nd September 1998 Mr Yeung informed all supervisors by memo the “Interim Report Form on Staff Performance” was ready for use. But despite the initial intention for Hospital-wide implementation of the Scheme, the task group recommended the Scheme be first applied to the nursing grades with voluntary participation from non-nursing staff encouraged. The 1^st batch of nursing grades' Reports was due in 1999 upon expiry of the annual appraisal period (see clause 3 of the minutes stating “……希望各主管能定期為部門職員撰寫一簡略的工作表現報告，作為各職員填寫每年一次的“職員評估報告表格”的依據” (my emphasis)). So in any event there could not have been any Early Report in 1998.

138.Mr Yeung chased for submission of the Reports at 九九年度第一次部門主管會議of 2^nd March 1999 (the “1999 Meeting”) : “請還未向楊經理呈交職員工作表現報告的部門盡早向楊經理遞交有關報告” (clause 4.1 of the minutes). I disagree the natural inference was that the Reports were due for all Hospital staff. By that time the supervisors already knew the Scheme was only applicable for the nursing grades although voluntary submission of the Reports for non-nursing staff was permissible. Clause 6.1 of the minutes of 九九年度第八次部門主管會議dated 7^th December 1999 stating that “自兩年前起，院方已開始實施職員評估制度 ……” (my emphasis) is not inconsistent with the above. 

139.The Plaintiff argued the Hospital's failure to let him have copies of the Early Reports and the Plaintiff's Reports was to hide the truth. But there is no plausible reason for the Hospital to hide the truth back in 1998 to 2000. Further, clause 4.3 of the minutes of the 1999 Meeting noted “為不影響評估者日後填寫報告之公正，楊經理並不鼓勵主管及職員保留 “表現報告”之副本”. I reject the Plaintiff's contention.

140.I find on balance the Scheme was extended to clerical staff in 2000, but the departments still failed to submit the Reports to Mr Yeung. Filling out the Reports was time-consuming and the supervisors had to adjust the duty shift rosters to arrange appraisal interviews with the staff. So at the meeting of 01年度第二次部門主管會議 on 29^th May 2001 (the “2001 Meeting”), “楊經理表示直至目前為止，仍有主管未向其呈交職員評估報告，請未提交的同事盡早完成是項工作” (clause 8.1 of the minutes). Thereafter during 2001 the supervisors gradually submitted the Reports to Mr Yeung. I place no weight on Mr Chan Hing's statutory declaration dated 29^th October 2002 stating he was sure there were 2-3 appraisal reports for the Hospital's employees before 2001. No particulars were provided and his assertion was not tested under cross-examination.

(f) Early Reports

141.Plaintiff's case  The Plaintiff claimed the Hospital concealed his outstanding Early Reports as well as the Reports of other clerical staff from 1998 to 2000. He claimed he achieved 80-90% “A” grades for the performance criteria in the Early Reports with some “B” or “C” grades. He was always punctual except when he had to attend follow-up treatment at the GH.

142.Hospital's case  Ms Fok denied the Plaintiff's contention. Mr Yeung first received the Reports for the AO staff from Ms Fok in/about September 2001 except for the Report of Ms Lau Siu Shan in 1999 (“Ms Lau's Report”).

143.Ms Fok  I prefer Ms Fok's evidence that there were no Early Reports (see also the above findings in relation to the implementation of the Scheme). As reflected in Mr Yeung's comments in the Reports he prepared for Ms Fok for 1999-2003, she was an exacting supervisor who demanded high standards of performance from her subordinates. In 2001 she did not give any “A” grade in the Reports for the AO's staff. The Plaintiff could not satisfactorily explain why he allegedly had so many “A” grades when his work performance in relation to patient admission procedures for the first 6 months was unsatisfactory and thereafter his duties were (to the AO's inconvenience) limited to receptionist duties. He was constrained to say that in 1998-2000 Ms Fok was fair/honest in grading his work performance, which did not sit well with his claim that she succumbed to Mr Yeung's directive to downgrade his work performance in Fok's Report. Having considered the evidence concerning the Plaintiff's work performance at the AO (see above), I am persuaded Ms Fok never gave any “A” grade for the Plaintiff.

144.Early reports for other clerical staff  The Plaintiff claimed the Reports made prior to 2001 as disclosed by the Hospital in these proceedings, eg (a) Ms Lau's Report (AO) for the appraisal period from 1^st September 1998 to 31^st July 1999 and (b) the Reports for the AD staff for the calendar year 1999, suggested the Early Reports did exist. However, I prefer the Hospital's explanations below.

145.Ms Lau's Report  Ms Fok filled out Ms Lau's Report in 1999 pursuant to the Explanatory Note (5 “E” grades, 6 “D” grades, 3 grades between “C” and “D” grades and 2 “C” grades). Ms Lau disagreed with Ms Fok's comments and refused to sign the Report. Mr Yeung interviewed Ms Lau, but did not add further comments. I do not accept Ms Fok was not honest in preparing Ms Lau's Report. The Plaintiff's claim that Ms Lau deserved higher grades for “責任心” and “人際關係” does not sit well with his assertion that during that time Ms Fok was fair/honest in preparing the Early Reports. I prefer the Hospital's evidence that Ms Lau had a poor work attitude and conflict with Ms Fok, so the AD decided to transfer Ms Lau to a vacancy at the GS. Since it was not yet time in 1999 for Ms Fok to submit the AO staff Reports, Mr Yeung requested Ms Fok to prepare a Report to record the reason for Ms Lau's transfer, so such Report did not show the Early Reports were in existence. The Plaintiff doubted Mr Yeung's reasoning because he did not similarly ask for a Report on the Plaintiff (which was not prepared) at the time of the GO/OPD Transfer. However, by 2001 Mr Yeung was urging the supervisors (including Ms Fok) to prepare the annual appraisal Reports for all staff and when Ms Fok prepared Fok's Report at Mr Yeung's request for record it covered the Plaintiff's work performance over the relevant period.

146. Early reports of AD's staff  Mr Yeung prepared the 1^st batch of the Reports for his staff at the AD as well as for Ms Fok and the nursing department head in January 2000. As the executive manager who introduced the Scheme, he supported the Scheme through voluntary participation by preparing Reports for his non-nursing subordinate staff. Such Reports were therefore not indicative of the existence of the Early Reports.

(g) Fok's Report

147.Findings  I first set out my findings based on the analysis below. The Scheme applied to clerical staff in 2000, but Ms Fok had not submitted the annual AO staff Reports by the 2001 Meeting when Mr Yeung urged the supervisors to submit the Reports. Eventually she submitted the 1^st batch of the AO staff Reports to Mr Yeung in/about early September 2001 (the “AO 1^st Reports”). She thought it unnecessary to prepare one for the Plaintiff since he had left the AO. But upon checking the AO 1^st Reports, Mr Yeung reminded her to submit a Report in respect of Plaintiff for record. So Ms Fok prepared Fok's Report. She gave the Plaintiff 1 “B” grade, 2 “C” grades and 13 “D” grades and commented that “上班準時，衣着尚算整齊，注意工作態度及慎言” (“Fok's Comments”).

148.During a normal appraisal interview, Ms Fok would personally give the Report to the relevant staff to read, comment and sign. But since the Plaintiff had already left the AO, Ms Fok did not have an appraisal interview with him. The Plaintiff worked at the 6^th floor GO store and she did not know at what hours he would return to the GO's office on the ground floor. She was also too busy to personally give Fok's Report to him. The Plaintiff returned to the Hospital after the EOC Meeting on 17^th September 2001. Ms Fok happened to send Fok's Report to the Plaintiff by amah on the same day. She wanted to submit Fok's Report to Mr Yeung before going on 2 weeks' leave on 18^th September 2001. The Plaintiff received it at about 3:00pm to 4:00pm when he was working at the GO and he signed on it.

149.Plaintiff's claim  The Plaintiff claimed the amah told him Fok's Report was urgently required by the AD. Since he was busy and in a hurry to go to the RB, he just glanced at it and signed. He said (a) the timing of the EOC Meeting and the request for him to sign Fok's Report could not have been coincidental, (b) the AO 1^st Reports were prepared in early September 2001 to camouflage Fok's Report as part of the annual AO staff appraisal Reports, (c) the Hospital management/Mr Yeung caused Ms Fok to give a poor appraisal for him and (d) Fok's Report was created for forwarding to the EOC under cover of the Hospital's letter of 21^st September 2001, all in retaliation of the EOC Complaint.

150.I reject the above contentions. The Plaintiff's evidence is unreliable. On the 3^rd day of trial he admitted he was unable to say whether Ms Fok was as honest in preparing Fok's Report as in filling out the Early Reports, but on the following day he claimed she was not honest in preparing Fok's Report.  I disagree that in 2001 Ms Fok had a grudge against the Plaintiff because of their earlier conflict over the change of duty roster and leave applications. Even on the Plaintiff's case, he accepted Ms Fok had all along been fair/honest in her appraisals in the Early Reports, and by September 2001 he had left the AO and his conflict with Ms Fok had ceased. There was no reason for Ms Fok to succumb to the alleged management directive to falsify the Plaintiff's work performance, particularly when she did not know about the EOC Complaint (see below). Further, if the AO 1^st Reports were used as smokescreen, there is no plausible reason for them to be prepared ahead of Fok's Report. There was also no reason for Ms Fok to assume the Plaintiff would not read Fok's Report (and raise objection to its contents) when it was brought to him for signature by the amah.

151.EOC Complaint  I accept that (a) Ms Fok did not know about the EOC Meeting and (b) she only knew of the details of the EOC Complaint on 8^th October 2005 when she was told by the Hospital's solicitors at their office. When she signed her witness statement at Mr Yeung's office in April 2005, she was unsure what the litigation was about.

152.Appraisal period  The Plaintiff criticised Ms Fok for leaving the start date of the appraisal period in Fok's Report and the AO 1^st Reports blank. The end date was stated as 31^st August 2001. I accept Ms Fok's explanation that because she had no prior experience of filling out the Reports, she thought (but was unsure) the start date should be the beginning of 2000, which meant an appraisal period ending on 31^st August 2001 would be 1 year and 8 months in contrast to the usual annual period. This dilemma over the appraisal period was caused by deferral of the preparation of the AO 1^st Reports for the calendar appraisal year 2000 until August 2001. Ms Fok also believed Mr Yeung would tell her if there was a need to specify the start date. Anyway, the lack of a start date for the appraisal period cannot infer a deliberate downgrading of the Plaintiff's work performance.

153.Inaccuracies in Fok's Report?  The Plaintiff claimed Fok's Report contained inaccurate/unfair remarks concerning his work performance at the AO. The Plaintiff said he was never late, so he should have a better grade for “準時”. He should also be commended for helping to apprehend a robber/thief at the Hospital and therefore receive better grades for “可靠性” and “警覺性”. Sr Ho praised him for his suggestion for installing CCTV, so he should have a better grade for “自發性”. I disagree with the above criticisms. An appraisal should be based on the supervisor's observation of the staff's work performance throughout the appraisal period and not on individual incidents. In my view, there is plainly insufficient evidence that the Plaintiff's work performance was downgraded. I reject Mr Chan's submission that the performance criteria in Fok's Report should be graded on his receptionist duties (ie his actual work) and not on the full requirements of his post. In my view, the Plaintiff was a Clerk III at the AO and should be assessed according to the full job requirements of that post.

154.The Plaintiff criticised Fok's Comments in that they (a) failed to refer to specific mistakes when Ms Fok identified particular mistakes in the AO 1^st Reports and (b) had only 2 lines when Ms Fok's comments varied from 2.5 to 5 lines in the AO 1^st Reports. I see no merit in such arguments. Ms Fok prepared the Reports from recollections of her observations of staff performance throughout the appraisal period. She did not keep records or check information (other than the dates when new staff joined the AO) before filling out the Reports. The genuineness of her appraisal does not turn on the length of her comments in the Reports or the reference to specific illustrations.

155.I also reject the Plaintiff's claim that he did not understand the remark “慎言” in Fok's Comments. I accept it referred to a specific incident well known to the Plaintiff. On/about 22^nd December 2000, Ms Fok believed (but was unsure) the Plaintiff might have made a mistake during work based on what a colleague told her. When she raised the subject, the Plaintiff became agitated, used foul language and complained she picked on him. Ms Fok reported to Mr Yeung, who asked the Plaintiff to apologise to Ms Fok. The remark “慎言” was to remind the Plaintiff that he should be careful about use of words. It was not for warning the Plaintiff on what he should say at the EOC Meeting. After all, Fok's Report only reached the Plaintiff after the EOC Meeting.

156.Comparison with other AO staff  In his Statement dated 12^th June 2002, the Plaintiff claimed (a) Mr Cheung made mistakes in his work despite the month-long handover and (b) he noticed Ms Fok reprimanding other AO staff who made mistakes when he was working at the GO ground floor office. Further, the Plaintiff in his letter to the EOC dated 15^th October 2001 claimed (i) Ms Kit Yeung (“Ms Yeung”) told him she was criticised for her poor English and tardiness in dealing with a foreigner and (ii) Ms May Kwok (“Ms Kwok”) told him she was often late and received many “D” grades for her work performance. The Plaintiff argued Fok's Report must have downgraded his work performance because these other AO staff got better grades when their work performance was worse.

157.The Plaintiff did not refer to the above in his witness statements or evidence at all. There was no direct criticism of poor language in Ms Fok's comments in Ms Yeung's Report dated 11^th September 2001. Ms Kwok's Report dated 12^th September 2001 had 11 “C” grades and only 5 “D” grades and her work was said to be “中規中矩”. Further, Ms Kwok's 2^nd Report dated 26^th April 2002 showed improvement. In any event, there is no merit in adopting a comparative approach since each appraisal was directed at the individual staff.

158.Report for張少華  The Plaintiff complained that Ms Fok could not comment on the period before 張少華 joined the AO on 26^th March 2001 in her Report for 張少華dated 11^th September 2001 which referred to an appraisal period from an unspecified date to April 2001. In my view, there cannot be any misunderstanding because the Report specified the appraisal was for his work performance at the AO.

159.Interview with Mr Yeung  The Plaintiff claimed he only knew of the contents of Fok's Report when he was interviewed by Mr Yeung on 18^th September 2001 (although at one stage he said he came to know the contents when the EOC sent a copy of Fok's Report to him), and he told Mr Yeung he would improve. He believed (but was unsure) he told Mr Yeung he disagreed with the grades given by Ms Fok. He claimed to be surprised when Mr Yeung gave him a verbal warning and warned of follow-up on his future performance. In his letter to the EOC dated 15^th October 2001, the Plaintiff said Mr Yeung warned of disciplinary action if verbal warning was received twice, but Mr Yeung had to see other appraisals to be submitted by the supervisors of the GO and the OPD.

160.On balance I reject the Plaintiff's evidence and prefer Mr Yeung's evidence. If the Plaintiff disagreed with the appraisal in Fok's Report and thought he had performed well, it was strange for him to tell Mr Yeung he would improve. He was also unsure whether he complained of the “inaccurate” appraisal. He did not satisfactorily explain why he did not at the meeting write down his disagreement with the appraisal in Fok's Report. On the other hand, Mr Yeung easily understood Fok's Report in light of the Explanatory Note without any need to make detailed investigation. He let the Plaintiff read Fok's Report and indicated his hope that the Plaintiff would recognise his own weaknesses and improve. Mr Yeung said the Plaintiff disagreed with Ms Fok's appraisal but gave no explanation. The Plaintiff was uncooperative and failed to display any sincerity to improve. Mr Yeung gave him a verbal warning. Although it was unnecessary to have a witness, Mr Yeung asked Ms Ng to be present given the Plaintiff's negative attitude. After the interview, Mr Yeung summarised his discussion with the Plaintiff in the Report : “Staff is interviewed on 18/9/2001 at 4:50pm regarding the sub-standard of his performance, advice given for his work improvement. Verbal warning given to staff”.

161.Further Reports for the AO staff  Ms Fok prepared a 2^nd batch of Reports in April 2002 for the AO staff (the “AO 2^nd Reports”) for the appraisal period from 1^st January to 31^st December 2001, which overlapped with the appraisal period in the AO 1^st Reports, instead of adopting a consecutive start date of 1^st September 2001 following the appraisal period of the AO 1^st Reports. I see nothing objectionable with that. I accept Ms Fok intended the AO 2^nd Reports (except for staff who newly joined the AO) to cover a calendar year.

162.The Plaintiff argued that the AO 2^nd Reports were made to cover up the sudden preparation of Fok's Report in September 2001. This is difficult to understand because by April 2002 Fok's Report and the AO 1^st Reports had already been submitted to Mr Yeung and Fok's Report had even been copied to the EOC. The Plaintiff next raised suspicion over the difference in the start dates of the appraisal periods for Ms Yeung's 2^nd Report dated 30^th April 2002 (ie 1^st January 2001) and for the 2^nd Report for 張少華 dated 26^th April 2002 (ie 26^th March 2001). The short explanation was that Ms Yeung had been with the AO for a long time but張少華only joined the AO on 26^th March 2001. After the experience with the AO 1^st Reports, Ms Fok checked and adopted the date when 張少華 joined the AO as the start date of the appraisal period of his 2^nd Report. As regards Ms Yeung's 2^nd Report, it was an annual Report to cover a calendar appraisal year.

163.Summary  I find the Hospital has given an adequate and satisfactory explanation for Fok's Report. I am satisfied it was prepared by Ms Fok fairly/honestly for staff development purpose in ignorance of the EOC Complaint.

(h) Cheung's Report

164.Cheung's Report noted the appraisal period was from 23^rd April to 15^th July 2001. Sr Cheung gave 1 grade between “B” and “C”, 2 “C” grades, 7 grades between “C” and “D” and 6 “D” grades, and commented “Bill外表端莊、有禮、樂於助人而守時，但工作欠主動及效率，有時不能集中精神，短短二三月間，曾有數位醫生投訴他遺漏已來電預約的檢查等，亦有弄錯預約的檢查，引致不便和混亂”.

165.EOC Complaint  I accept Sr Cheung's evidence that prior to March 2002, she was unaware of the EOC Complaint. By March 2002 when she gave her statement to the EOC, she knew the Plaintiff had approached the EOC, but was still not too clear about the details of his complaints.

166.Timing and non-disclosure of Cheung's Report  The Plaintiff claimed (but did not plead) that by Cheung's Report the Hospital continued to make inaccurate/unfair remarks concerning his work performance in retaliation of the EOC Complaint and for sending to the EOC under cover of the Hospital's letter of 19^th November 2001, so the Hospital hid Cheung's Report from the Plaintiff, who only came to be aware of it when the EOC gave him a copy. I disagree. The Plaintiff worked at the OPD from April to July 2001. I find that Sr Cheung prepared Cheung's Report in late October or November 2001, which was the time when she prepared the OPD staff Reports. Mr Yeung also confirmed (and I accept) he received Cheung's Report after the Plaintiff left the OPD, namely, some time between the Hospital's letters to the EOC dated 21^st September 2001 (which only referred to Fok's Report) and 19^th November 2001 (which enclosed Cheung's Report). Sr Cheung prepared Cheung's Report for record purpose, so she did not arrange an appraisal interview with the Plaintiff or ask him to sign Cheung's Report (although she conducted appraisal interviews with other OPD staff). She confirmed there would be no difficulty in arranging an interview with the Plaintiff had she thought it necessary.

167.Appraisal  I refer to my earlier findings that the Plaintiff's work performance at the OPD was substandard. I further find that Cheung's Report represented her honest views of the Plaintiff's work performance at the OPD. I disagree the Hospital management caused Sr Cheung to give a poor appraisal in retaliation of the EOC Complaint.

168.Investigation  The Plaintiff criticised the Hospital's failure to investigate into Sr Cheung's complaints against him. However, I refer to my earlier findings that his work performance at the OPD was unsatisfactory. Mr Yeung believed there was no need for him to conduct detailed investigation because Sr Cheung had spoken with Dr Lam on the subject and checked with other OPD staff who informed her of similar complaints by other doctors. Mr Yeung had also asked Sr Cheung appropriate questions. Sr Ho said there was no need for her to investigate since Sr Cheung and Mr Yeung had looked into the matter.

169.One cannot lose sight of the fact that the OPD handled about 400-500 cases per day and the Hospital had over 500 staff. The complaints concerned whether a particular staff could meet his job requirements, which matter I find could/should be appropriately delegated to the department's supervisor (ie Sr Cheung) with Mr Yeung adopting a supervisory role. Sr Ho quite sensibly pointed out that the existence of various complaints against the male staff of the OPD (ie the Plaintiff) already indicated there was an issue that required to be addressed. But even if the alleged failure to investigate was an administrative failing (which I disagree), I do not see how such failure can be said to be in retaliation for the EOC Complaint, particularly as I have found the complaints to be justified and Sr Cheung ignorant of the EOC Complaint.

170.No verbal warning  It was argued that because no verbal warning was given the Plaintiff's work performance at the OPD was not substandard. Clause 6.2 of the minutes of九九年度第八次部門主管會議dated 7^th December 1999 stated that “…… 院方對各職員的紀律/操手非常重視，如有需要，對犯錯的職員，院方是會發出口頭/書面警告，如同事仍不受勸籲，行政部就會作出或採取相關處分行動” (my emphasis). This at best shows that “if there was a need” verbal warning could be given. But Sr Cheung did not think the Plaintiff's work performance at the OPD required any verbal/written warning yet. When she received complaints from Dr Lam and other doctors (through her staff), she told the Plaintiff to be more careful with bookings and warned him mistakes could lead to complaints/inconvenience. She reported the situation to the AD and also told the AD about the Inconvenience. Shortly thereafter, the AD decided to transfer the Plaintiff to the RB, so Sr Cheung did not have in-depth discussion with the Plaintiff about his problems. In the circumstances, I disagree the absence of a verbal warning meant the Plaintiff's work performance was not substandard.

171.Mr Yeung's handling of Cheung's Report  When Mr Yeung read Cheung's Report, he realised the Plaintiff had not signed it, so he told Sr Cheung he would treat such Report as record of the reason for the GO/RB Transfer. He did not request Sr Cheung to conduct an appraisal interview with the Plaintiff. Mr Chan questioned the different treatment given to Ms Lau (ie she was interviewed) on her transfer to the GS. But Cheung's Report was made for record post-transfer and Mr Yeung found the information therein similar to Sr Cheung's earlier report to him and to the explanation he gave the Plaintiff for the GO/RB Transfer. In the circumstances, I accept that Mr Yeung considered it unnecessary to have another interview on the same subject with the Plaintiff.

172.Summary  I find the Hospital has given an adequate and satisfactory explanation for Cheung's Report. I am not satisfied it was prepared for retaliation against the EOC Complaint or for downgrading the Plaintiff's work performance.

(i) Fong's 1st Report

173.Fong's 1^st Report  Fong's 1^st Report dated 6^th December 2001 covered an appraisal period from 23^rd April to 6^th December 2001. Sr Fong gave 1 “B” grade, 2 grades between “D” and “E”, 5 “C” grades, 5 “D” grades and 3 grades between “C” and “D” and commented that “善意，工作方面未達到應有的要求。建意多跟進未完成的工作。建意多参與院內的進修活動。建議兩個月後再跟進，以上的評核是經由Christina在一起作以上的評估，Bill接受以上的評核。他也不能夠勝任處理半天工作基本安排時間，他不願意接受這份文件”. Sr Fong and Ms Lam (as witness) signed on Fong's 1^st Report. The Plaintiff wrote “由於本人認為以上多點評語與事實不應，更因本人已向平等機會委員會等對院方作出投訴，本人不想再在不自願及沒有證據下簽任何文件。[Plaintiff's signature] 6/12/01 3:05pm”.

174.To understand Fong's 1^st Report, it is necessary to appreciate the operations of the GO store and what happened there from 3^rd to 6^th December 2001.

175.Storage of supplies at the GO store and the return supplies  Different supplies were stored at different designated spaces (the “Spaces”) within the GO store, including the corridor which was also a walkway and a fire escape route. Each Space had room for 3 rows of boxes, so there should be enough room for new supplies. Supplies with damaged boxes should be returned (the “Return Supplies”) and collected by the suppliers' delivery workers within a week to a month. Pending collection the Return Supplies (properly identified by paper label affixed thereon) were still placed within the Spaces. But when the suppliers telephoned the GO a day before or on the day of collection, the relevant Return Supplies would be put to one side so the delivery workers would not pick up the wrong boxes.

176.Plaintiff's general work performanceat the GO  The Plaintiff claimed his work performance was satisfactory and relied on Mr Yeung's comment in the letter to the EOC dated 19^th November 1001 (ie before Mr Yeung received Fong's 1^st Report) that the Plaintiff performed satisfactorily after his transfer to the GO. He explained that minor mistakes were inevitable as he had to (a) remember the locations of the Spaces for over 2,000 items in a short time and (b) rush to finish his work within a 3.5-hour shift. But having heard Sr Fong's evidence and upon analysis of the Plaintiff's assertions (see below), I am convinced the Plaintiff's work performance at the GO was substandard and did not meet his job requirements.

177.I find that ever since Sr Fong took charge of the GO on 22^nd August 2001 she had time and again instructed the Plaintiff on how to receive deliveries of supplies and how to store them. But the Plaintiff would interrupt her, raise objections and try to highlight his own perfection by pointing out his colleagues' mistakes. Sr Fong patiently tried to make him understand his work performance was unsatisfactory, but he ignored her. He did his work in his own way, so other GO staff/Sr Fong had to follow-up on his work (eg restore the supplies to the correct Spaces). Sr Fong was dissatisfied but tried to be compassionate. She would not complain to Mr Yeung, so when Mr Yeung wrote to the EOC on 19^th November 2001 he did not know the Plaintiff's work performance was unsatisfactory. He adopted a fair/unbiased approach by assuming in the letter that the Plaintiff's performance was satisfactory. Sr Ho also confirmed Sr Fong rarely discussed staff work performance, but as the sisters lived/ate together she would sometimes hear Sr Fong vent her frustration over the Plaintiff's work performance at mealtimes.

178.I now turn to the events of 3^rd to 6^th December 2001. Sr Fong claimed the Plaintiff's handling of the supplies he received on 5^th December 2001 illustrated his work performance was substandard. But the Plaintiff disagreed.

179.Requisition of supplies by Hospital's departments  On the 1^st and 2^nd days of each month the GO would distribute supplies to the Hospital's various departments pursuant to their requisitions (“執倉” and “派倉”, the “Requisition”). If the 1^st and 2^nd days of the month fell on the weekend, the Requisition would take place on the 3^rd and 4^th days of the month. I accept Sr Fong's evidence that the GO (which had an understanding with the suppliers) would only order and receive new supplies to replace the distributed stock after the monthly Requisition. I accept it would be rare to have new supplies arriving before the Requisition was complete.

180.Requisition in December 2001  1^st and 2^nd December 2001 fell on the weekend, so the Requisition was postponed to 3^rd and 4^th December 2001. The Plaintiff claimed the GO store was chaotic on 5^th December 2001 since the Requisition was still continuing and there was shortage of manpower. However, this was not mentioned in the Plaintiff's witness statements. In light of the totality of the evidence, I prefer Sr Fong's evidence that by 5^th December 2001 the Requisition had been completed and the GO store was rather empty.

181.Jumbo toilet rolls (the “Rolls”)  The parties disputed over the Plaintiff's handling of the receipt of 15 large carton boxes of the Rolls (the “Roll Boxes”) he received on 5^th December 2001 (the “5/12/01 Delivery”). I accept the Space for the Roll Boxes was marked by a wall label along the corridor, and had room for 3 rows of boxes (including damaged Roll Boxes).

182.Plaintiff's case on the 5/12/01 Delivery  The Plaintiff claimed the GO store was chaotic on 5^th December 2001 as the Requisition was ongoing. Ms Lam wrote “存走廊” on the relevant invoice and instructed the Plaintiff to handle the delivery. The Plaintiff told the delivery workers to place the Roll Boxes at their designated Space along the corridor. There was not enough room, so some new Roll Boxes were placed in front of or next to the old stock. Ms Lam did not tell the Plaintiff they were wrongly placed or some of them should be returned.

183.The Plaintiff was busy dealing with the invoice and had no time to inspect the Roll Boxes. Ms Lam told him not to bother with the Roll Boxes and help with the Requisition. He recalled Ms Lam previously told him damaged boxes could be returned later if the supplies inside were not easily breakable. Therefore he did not tell Sr Fong/Ms Lam about the return of any damaged Roll Boxes even by the appraisal interview on 6^th December 2001 (see below). After the appraisal interview, the Plaintiff conferred with Ms Lam and decided only 2 Roll Boxes had to be returned, so he put them to one side affixed with a paper label stating “return goods” in Chinese. He disagreed there were 5-6 damaged Roll Boxes. The Plaintiff also pointed out Ms Wai made the same mistake on 29^th November 2001 in accepting delivery of 12 Roll Boxes (some of which were damaged) that were in a worse condition than the 5/12/01 Delivery (the “29/11/01 Delivery”).

184.Hospital's case on the 5/12/01 Delivery  Sr Fong said 5-6 of the 15 Roll Boxes received by the Plaintiff were damaged. She all along insisted that the GO staff who took delivery should carry out inspection, so the Plaintiff should have reported the damaged Roll Boxes to Ms Lam or Sr Fong on the same day (ie 5^th December 2001). Further, since the Requisition was completed on 4^th December 2001, the Plaintiff should have sufficient time to properly store the new Roll Boxes at the designated Space. But when Sr Fong checked the GO store in the evening, she discovered there were 5-6 damaged Roll Boxes received by the Plaintiff that did not have any paper label identifying them as Return Supplies (but the damaged Roll Boxes received by Ms Wai had such labels). Sr Fong pulled out the damaged Roll Boxes received by the Plaintiff and asked Ms Lam the following morning whether anyone had reported about them. The Plaintiff had not done so even up to the time of the appraisal interview. Sr Fong regarded this as a failure to satisfy the job requirements of a Clerk III at the GO.

185.During her inspection in the evening of 5^th December 2001, Sr Fong also found that other supplies received by the Plaintiff were not properly placed at their designated Spaces and were blocking the doorways along the corridor as well as taking up the Spaces for other supplies. She moved them to the correct Spaces. Since the Requisition was finished and the GO was re-stocking its supplies on 5^th December 2001, there was adequate space for new deliveries. Further, all GO staff knew that if old stock had not been cleared, they had to pull out the old stock and place the new supplies behind them.

186.Analysis in relation to the Roll Boxes  I prefer Sr Fong's evidence which I find to be honest and reliable. The Plaintiff admitted that during the evening of 5^th December 2001 “someone” had moved the old stock from the Space for the Roll Boxes to make more room for the new stock. I have no doubt Sr Fong did move the Roll Boxes. However, the Plaintiff complained that if it were Sr Fong, she had the luxury of time in the evening to arrange proper storage whilst he had too much to do during his shift at the GO and had to rush to the RB at 4:00pm.

187.In my view, there was no reason for Sr Fong to move the supplies received by the Plaintiff unless they were incorrectly placed (despite Ms Lam's written directions to place them at the corridor). I find it was the Plaintiff's duty to arrange the proper storage of the 5/12/01 Delivery and there should be no difficulty in doing so since the GO was rather empty after the Requisition was finished on 4^th December 2001. I do not accept he had told Ms Lam about the damaged Roll Boxes or he had affixed any paper label to identify them as such (see below).

188.With the above background in mind, I come now to Fong's 1^st Report and the appraisal interview on 6^th December 2001.

189.Self-appraisal Report  Sr Fong made an appointment with the Plaintiff to have an appraisal interview on 6^th December 2001. I find that according to her usual practice Sr Fong gave him a blank Report form and asked him to assess his own work performance. The Plaintiff returned his Self-Appraisal Report dated 28^th November 2001 at the appraisal interview. I reject the Plaintiff's claim that the Self-Appraisal Report was for the excellent employee award competition during the Hospital's Christmas party in 2001. Mr Yeung confirmed the competition did not require any self-appraisal. There was also no suggestion the competition was part of the Scheme.

190.The Plaintiff gave himself full “A” grades in the Self-Appraisal Report. But given my analysis of his work performance at the GO and his rebuff of Sr Fong's patient efforts to explain his errors, I do not accept he deserved all “A” grades. Instead, I find he had no proper insight of or he turned a blind eye to his substandard work performance. The Self-Appraisal Report clearly illustrates how impossible the Plaintiff was as an employee and it also underlines the genuineness of Sr Fong's frustration.

191.Plaintiff's case on the joint inspection prior to the appraisal interview  Sr Fong conducted the appraisal interview in the presence of Ms Lam on 6^th December 2001. Prior to the interview, the 3 of them went to the GO store to look at the supplies the Plaintiff received the day before. The Plaintiff thought there was no difference between how he placed the supplies on 5^th December 2001 and the way they were stored on 6^th December 2001. He claimed any difference was the result of “someone” having moved the supplies to make more room, so they appeared to be more tidily placed on 6^th December 2001, but there was still some old stock and the new supplies still spilled beyond the relevant Space. He explained to Sr Fong there was no empty room when he received the 5/12/01 Delivery the day before. Sr Fong did not say anything to this, but when the Plaintiff explained the difficulty caused by the on-going Requisition, Ms Lam acknowledged the situation was chaotic. However, Sr Fong failed to record the Plaintiff's explanation in her handwritten record of the appraisal interview (the “Record”).

192.Hospital's case on the joint inspection prior to the appraisal interview  At the joint inspection, the Plaintiff denied there was any difference between how the supplies were stored on 5^th and 6^th December 2001. Sr Fong told him the supplies should be stored according to the item codes for the Spaces marked along the corridor (which instructions she had repeated to the Plaintiff time and again). At that time the Plaintiff did not explain he was forced to place the new supplies adjacent to the old stock because of the chaos arising from the on-going Requisition. Sr Fong strongly remembered the 5/12/01 Delivery because it happened the day before the appraisal interview and there had been a high proportion of damaged boxes. However, it was merely an illustration of the Plaintiff's repeated mishandling of the supplies.

193.Analysis of the joint inspection  Given my earlier findings, I prefer the Hospital's case and reject the Plaintiff's evidence/suggestion that Sr Fong mistakenly blamed him because “someone” moved the supplies at the GO overnight. I have found that it was Sr Fong who moved the supplies. The Plaintiff's denial of any difference between the storage of the supplies on 5^th and 6^th December 2001 is, in my view, a stubborn refusal to acknowledge his error in storing the supplies contrary to the GO practice and Sr Fong's instructions. I disagree there was any chaos on 5^th December 2001 since the Requisition had been completed. Such explanation did not find its way into the Record which Sr Fong prepared almost contemporaneously and the veracity of which I accept.

194.I also reject the Plaintiff's assertion that Sr Fong favoured Ms Wai but picked on him. Ms Wai's handling of the 29/11/01 Delivery was in line with the GO practice and Sr Fong's instructions. I accept that Sr Fong treated her staff and corrected their errors in the same way. She did not give high grades nor outstanding comments for Ms Wai's Report. Further, the Plaintiff's focus on the alleged errors of others reflects more of his unwillingness to recognise his own shortcomings rather than the excellence of his own work performance. Sr Fong noted in the Record that “他有意無意間不斷提出別人的不是，做法作比較”, which supports the veracity of her version of the events. Given the Plaintiff's poor work performance and attitude, it is not surprising Sr Fong came to the view that the Plaintiff failed to appreciate his own problems and was unwilling to improve.

195.But as correctly pointed out by Mr Chan SC, whether Sr Fong's explanation is reasonable or acceptable is neither here nor there unless it supports the inference that she acted under management directive to give the Plaintiff a poor appraisal in Fong's 1^st Report in retaliation of the EOC Complaint. In my view, the factual matrix does not on balance lead to such inference or conclusion.

196.Appraisal interview with the Plaintiff  At the appraisal interview, Sr Fong referred to the substantial difference between the “A” grades the Plaintiff gave himself in the Self-Appraisal Report and the grades she gave him in Fong's 1^st Report. When she referred to the 5/12/01 Delivery, the Plaintiff became agitated, refused to sign Fong's 1^st Report and wrote his comments under “受評核者意見”. He then mentioned he had been to the EOC, which was the first time Sr Fong became aware of such fact. I accept Sr Fong assessed the Plaintiff according to his work performance and reject any suggestion the Hospital caused Sr Fong to downgrade the Plaintiff's work performance in Fong's 1^st Report because of the EOC Complaint.

197.Tape-recorder?  The Plaintiff claimed that during the interview Sr Fong accused him for having brought a tape-recorder, which he loudly and repeatedly denied and even cursed himself to the effect that if there were a tape-recording, he would not die a good death. He became agitated and Sr Fong told him to calm himself. He then apologised.

198.I prefer Sr Fong's evidence that the Plaintiff petulantly said he had too much to do within too little time at the GO, so Sr Fong might as well give him all “D” grades and dismiss him. When Ms Lam left the conference room during the appraisal interview to receive some new supplies, the Plaintiff took out a tape-recorder and said he originally intended to record their conversation. Sr Fong said it would be unlawful or at least disrespectful. He then returned the tape recorder to his pocket. When Ms Lam returned to the conference room, they continued with the appraisal interview. I further accept Sr Fong's evidence as stated in the Record that when they returned to work after the appraisal interview, the Plaintiff suddenly shouted in great agitation twice that if in future a tape-recording was played in court with Sr Fong's/Ms Lam's voices, he would not die a good death. Sr Fong asked him to speak slowly and calm himself. The Plaintiff then apologised.

199.Appraisal period  The appraisal period for Fong's 1^st Report was from 23^rd April 2001 (ie the date the Plaintiff joined the GO) to 6^th December 2001, but Sr Loh was in charge of the GO from 23^rd April to 22^nd August 2001. Sr Fong explained she was unsure what date to adopt for the start date of the appraisal period and thought that in using the date the Plaintiff joined the GO it would help distinguish between the part-time Plaintiff and other full-time staff. Sr Fong also arranged for Ms Lam, who had helped to supervise other Clerks III over the relevant period, to be present at the Plaintiff's appraisal interview. In any event, I do not on balance see the difference in the appraisal periods between the Plaintiff and other GO clerical staff supports the suggestion that the Hospital caused Sr Fong to falsify the contents of Fong's 1^st Report in retaliation of the EOC Complaint.

200.Submission of Fong's 1^st Report to Mr Yeung  Sr Fong completed the Reports for other GO staff in December 2001 and submitted them as well as Fong's 1^st Report to Mr Yeung, who said she could make a note of the appraisal interview with the Plaintiff if she wanted. So Sr Fong prepared the Record on the same day and gave it to Mr Yeung. The Plaintiff knew of the existence of the Record because Mr Yeung showed it to him during his interview with the Plaintiff (see the Plaintiff's letters to the EOC dated 22^nd January, 2^nd February and 9^th March 2002). I accept the Record was accurate.

201.Mr Yeung's interview with the Plaintiff  Given the poor appraisal in Fong's 1^st Report, Mr Yeung invited the Plaintiff for an interview on 8^th December 2001. He explained the contents of Fong's 1^st Report and showed the Record to the Plaintiff. I find the Plaintiff disagreed with Fong's 1^st Report and adopted a negative attitude, but refused to give any explanation, to recognise his weak points or to improve. Mr Yeung explained to the Plaintiff that the appraisal was to help staff identify areas for improvement. Since the Plaintiff's poor work performance persisted after the earlier verbal warning, the Hospital would have to consider disciplinary action if he refused to improve. He gave the Plaintiff a warning (告誡), which was more serious than a verbal warning. There was no witness as it was not a necessary requirement.

202.I agree that Fong's 1^st Report and Mr Yeung's interview with the Plaintiff had nothing to do with the EOC Complaint. It was unnecessary for Mr Yeung to carry out investigations when he had Fong's 1^st Report and the Record, which omission was not in retaliation against the EOC Complaint. Sr Ho also confirmed only she and Mr Yeung knew of the EOC Complaint and they did not tell other Hospital colleagues (including Sr Fong).

203.Mr Yeung added his comments to Fong's 1^st Report after his interview with the Plaintiff that “由於楊忠偉先生對其主管的評核報告有異議，本人於8/12/2001正午12時接見楊忠偉先生，解釋工作評估是醫院的策略，每年都要向行政部報告每同事的工作表現，主管對他的評核是有權和有根據的。楊忠偉先生表現態度惡劣，不承認自己工作表現差，不過本人鄭重向楊忠偉先生告誡，希望他能夠改善工作表現，不然院方會採取處分行動。” Such comments were not shown to the Plaintiff.

204.Summary  I find the Hospital has given an adequate and satisfactory explanation. I do not agree the Hospital management caused Fong's 1^st Report to be made for downgrading the Plaintiff's work performance and/or for enclosing it to the EOC. In fact, it was the Plaintiff who requested for inter alia a copy of Fong's 1^st Report by letter to the EOC dated 22^nd January 2002. The EOC by letters dated 15^th and 25^th February 2002 to Mr Yeung requested for a copy, but the Hospital did not receive those letters. However, on the EOC's enquiry, Mr Yeung verbally replied inter alia that if the EOC asked for a copy of Fong's 1^st Report, he “would consider giving it to [the EOC] for investigation purpose”. The Hospital eventually gave a copy to the EOC and the EOC forwarded a copy to the Plaintiff on 12^th March 2002. In my view, it can hardly be said the Hospital caused Fong's 1^st Report to be made for the purpose of volunteering it to the EOC.

(j) RB

205.In his Statements dated 10^th May and 6^th September 2002, the Plaintiff claimed there was no appraisal for him at the RB because Mr Yeung wanted to force him to work the Late Shift without rotation. There was also no appraisal for Mr D Chan (but he did not work the Late Shift). The Plaintiff did not plead reliance of these matters for his claim of discrimination by victimisation. Mr Yeung frankly admitted that since he was in charge of the AD which managed the RB, he should have prepared Reports for the Plaintiff at the RB. However, the Plaintiff's Late Shift (4:00pm to 8:00pm) at the RB only overlapped his working hours (9:00am to 5:00pm) by 1 hour, so there was some difficulty (as recognised by both Sr Ho and Mr Yeung) in preparing the Plaintiff's appraisal. In any event, Mr Yeung all along believed the Plaintiff's work performance at the RB was satisfactory as (a) the work was simple and similar to his receptionist work at the AO and (b) no complaints were received.

206.Mr Yeung said there was no appraisal Report for Mr D Chan because Sr Ho directly managed his position and waived it. Sr Ho said she meant the RB only started operation for a short while and the female AD staff looking after the RB was new and unfamiliar with the RB's staff and operations, so no appraisal Report was prepared. There is some discrepancy in the above evidence, but upon careful consideration I do not find it affects the overall veracity of Sr Ho and Mr Yeung. In the end, Mr Yeung admitted he should have prepared a Report for Mr D Chan but he did not do so, and Mr D Chan later resigned. The Hospital normally would not conduct exit appraisals for outgoing staff.

(k) Close monitoring and annoying telephone calls

207.The Plaintiff claimed that since he lodged the EOC Complaint, he received 3-4 disturbing/annoying unidentified telephone calls a week during the Late Shift at the RB. I cannot see how such unidentified telephone calls can be laid at the Hospital's door when anyone could have telephoned him as the receptionist clerk at the RB.

208.I reject the Plaintiff's claim that Mr Yeung would pass by the RB after finishing work at 5:00pm and check whether the Plaintiff was at work. I do not see any purpose for Mr Yeung to do so when no attempt was ever made by Mr Yeung or the Hospital management to cause a poor appraisal to be done in respect of his work performance at the RB.

209.I also reject the Plaintiff's further claim that Sr Fong would also instruct him to deliver heavy objects for no cause and had a bone to pick with him, and that on many occasions in 2002 when he received supplies at the GO she would ask him to move the supplies unnecessarily and then ask him to move them back on the following day. By that time Fong's 1^st Report had already been done. I am impressed by Sr Fong's evidence and firmly believe it is not in her to target the Plaintiff.

(l) EOC's decision to stop sex discrimination investigation

210.On 19^th July 2002, the EOC informed Mr Yeung/the Hospital by letter of its decision to discontinue the investigation into the Plaintiff's sex discrimination complaint, and recommended the parties to resolve the complaint of disability discrimination by conciliation. On 22^nd July 2002 Mr Yeung informed the EOC the Hospital would not conciliate with the Plaintiff.

(m) Fong's 2^nd Report and dismissalof the Plaintiff

211.Fong's 2^nd Report dated 24^th July 2002 covered an appraisal period from 7^th December 2001 to 24^th July 2002. Sr Fong gave 2 “C” grades, 4 grades between “C” and “D” and 10 “D” grades, and commented “不負責，不聽指導，行事衝動魯莽”.

212.The Plaintiff claimed that following the Hospital's refusal to conciliate, the Hospital retaliated against the EOC Complaint by (a) causing Sr Fong to give him a poor appraisal in Fong's 2^nd Report and (b) wrongfully dismissing him on 24^th July 2002 on the pretext of his allegedly poor working performance by giving him 1 month's salary in lieu of notice.

213.However, I find the Hospital gave an adequate and sufficient explanation and the timing of its refusal to conciliate on 22^nd July 2002 had nothing to do with Fong's 2^nd Report and the dismissal of the Plaintiff on 24^th July 2002. Sr Fong hoped to give the Plaintiff a further chance, so she suggested in Fong's 1^st Report the Plaintiff should be followed-up in 2 months' time. But with the Plaintiff only joining the GO in April 2001 and Sr Fong becoming its supervisor in August 2001, Mr Yeung suggested it would be fairer to let 3 months to half a year lapse before a follow-up appraisal. He did not chase Sr Fong and because she was busy with the GO and nursing matters, she only filled out the follow-up appraisal Report on 24^th July 2002, ie about 7 months after Fong's 1^st Report. I accept the Plaintiff's overall work performance had deteriorated since he refused to listen to instructions and acted in his own way. Sr Fong did not interview the Plaintiff since this was only a follow-up. She then submitted Fong's 2^nd Report to Mr Yeung.

214.The Plaintiff claimed that on 24^th July 2002 Mr Yeung showed him Fong's 2^nd Report and said his performance was still poor, so he would be dismissed immediately. Mr Yeung gave him a cheque and told him to leave the Hospital at once. The Plaintiff claimed he did not protest because it was useless to talk to Mr Yeung. Mr Yeung did not leave his office during the meeting and the Plaintiff did not bring a tape-recorder. 

215.However, I prefer Mr Yeung's/Sr Ho's evidence. I find that on 24^th July 2002 Mr Yeung asked the Plaintiff to attend his office to discuss Fong's 2^nd Report, which was intended for identifying his weak points for improvement. The Plaintiff refused to comment on Fong's 2^nd Report. Mr Yeung said his work performance was unsatisfactory and if he did not improve the Hospital would have to dismiss him. The Plaintiff became very agitated. He said he would not speak with Mr Yeung and would only address the matter in court. I agree with Mr Yeung that in a work environment an employee should cooperate and abide by the employer's reasonable work instructions instead of demanding a resolution in court. I find Mr Yeung had no thought of the EOC Complaint and was only thinking about the Plaintiff's unsatisfactory performance and his unwillingness/lack of sincerity to improve, which were the only factors that led him to consider dismissal. Mr Yeung told the Plaintiff that if he refused to listen to advice, he would have to speak with Sr Ho. Although Mr Yeung did not see any tape-recorder, he reminded the Plaintiff to let him know if the Plaintiff wished to make any recording.

216.I also prefer the evidence of Mr Yeung/Sr Ho who both confirmed Mr Yeung brought the Plaintiff's Reports to brief Sr Ho on developments. It is difficult to envisage that they would both give false evidence to make up this episode. Sr Ho told Mr Yeung it might be better to let the Plaintiff leave since he refused to recognise his own mistakes, was unwilling to improve and failed to reach the Hospital's standards. I accept it was Sr Ho who decided to dismiss the Plaintiff although not by reason of the EOC Complaint. Mr Yeung then returned to his own office to inform the Plaintiff of Sr Ho's decision. He asked an account manager to prepare a cheque for the Plaintiff. The Hospital gave the Plaintiff a month's wages in lieu of notice and the Plaintiff left after signing the receipt. Mr Yeung recorded the dismissal in Fong's 2^nd Report that “楊忠偉先生的工作表現欠佳，經六個多月時間由其主管指導及監察未有改善，經院長批準，院方採取即時解僱行動”.

217.Summary  In my view, Fong's 2^nd Report was unconnected with the EOC Complaint or Mr Yeung's notice to the EOC on 22^nd July 2002 that the Hospital would not conciliate with the Plaintiff. On 14^th August 2002, the Plaintiff lodged a complaint of discrimination by victimisation with the EOC. The Hospital informed the EOC on 23^rd August 2002 that the Plaintiff was dismissed for poor work performance. A copy of Fong's 2^nd Report was enclosed with the letter. But I find that such Report was not created with a view to dismiss the Plaintiff or for sending to it to the EOC. As Mr Chan SC rightly points out, the question here is not whether the employment-related acts/decisions or appraisals were right or reasonable, but whether they amounted to a scam to hide the reason of retaliation for the EOC Complaint. I find the Hospital had given an adequate and satisfactory explanation and there is no or no sufficient evidence to raise the inference as suggested by the Plaintiff.

(n) Disciplinary procedure

218.At common law, an employer can terminate the employment of his employee for cause or in accordance with the terms of the contract without cause. For termination without cause, an employment contract may be terminated by notice or payment in lieu of notice under sections 6 or 7 of the Employment Ordinance Cap.57 subject to modification by contract to the extent that the contractual right is not inconsistent with the statutory right.

219.Here, the statutory right was modified by clause 11 of the Contract which provided inter alia that “離職通知 : …… (2)試用期後，任何一方必須給予對方1個月通知或以1月薪金代替通知終止服務，通知期不可以年假或假期代替”. The Hospital dismissed the Plaintiff pursuant to clause 11 by paying 1 month's wages in lieu of notice. This meant that even though the Hospital was dissatisfied with the Plaintiff's work performance, it elected to terminate his employment by notice without cause.

220.Mr Yeung had previously given a verbal warning and a warning (告誡) to the Plaintiff. He was entitled to do so. For minor misconduct (輕微過失), Chapter J1.2.2 of the Policy provided “管方有責任糾正僱員的工作表現或未能達到醫院標準的行為” and Chapter J1.3.1 provided “為確保能夠公平及公正地執行此項正策，部門主管在糾正輕微過失時，須遵守下列紀律程序 : (a) 輔導 …… (b) 口頭警告 倘經過輔導後仍沒有改善，督導人員要對僱員提出口頭警告 ……”.

221.Chapter J2.2.1 and the annex to Chapter J2 of the Policy provided that serious misconduct included “屢犯輕微過失”. Chapter J2.3.2 provided “任何僱員若被指犯嚴重行為不檢，將依照下文所規定的紀律研訊程序辦理”. Chapter 2.4.1 of the Policy provided “所有僱員將有權作出答辯，而每個案件將會按照手冊內所概述的程序進行會面調查”. Chapter 2.5 of the Policy provided that disciplinary procedure included (a) documentation of error in writing, (b) departmental investigation and (c) investigation by the AD. The Plaintiff complained the Hospital failed to comply with the requirements for “紀律研訊程序” in Chapter J2.5 of the Policy before dismissing him.

222.The question here is to what extent clause 11 of the Contract was modified by Chapter J2 of the Policy. It is arguable that clause 14 of the Contract incorporated the Policy into the Contract. The Hospital did not seek to argue differently. Neither party cited any authority on the relevant legal principles. But a similar issue arose in Cheung Chi Keung v The Hospital Authority HCA3838/2003, Deputy Judge To (unreported, 15^th February 2006).

223.Chapters J1 and J2 of the Policy were similar to Sections J1 and J2 of the Hospital Authority's Human Resources Policy Manual referred to in such case. As with the Policy, such manual was wholly silent on the mode of termination by the employer by notice. The learned judge rejected the argument that the Hospital Authority's right to terminate the plaintiff's employment by notice or payment in lieu of notice (which was “a distinct and separate right from the disciplinary provisions in Section J of the [manual]” – para.33) could only be exercised as a result of the disciplinary procedures of such manual. In that case, the Hospital Authority actually initiated disciplinary proceedings against the plaintiff. Disciplinary procedure in the form of an investigation was completed with the investigation committee recommending termination of the plaintiff's employment with notice. The plaintiff's employment was terminated by the soft option of payment in lieu of notice, so it was held that the Hospital Authority was not bound to comply with all prescribed disciplinary procedures in the manual.

224.Likewise in the present case, since the Plaintiff's employment was terminated by payment in lieu of notice, whether the Hospital complied with all the disciplinary requirements in Chapter J2 of the Policy is irrelevant. In any event, the question here is whether the non-compliance was by reason that the Plaintiff lodged the EOC Complaint. I find on balance the facts are insufficient for drawing such inference.

225.Sr Ho agreed that an employee's persistent refusal to cooperate such that it seriously affected his work performance fell within “屢犯輕微過失”. She did not carry out investigation herself, but believed Mr Yeung had followed up with the supervisorswho had talked to the Plaintiff many times. Mr Yeung explained that Chapter J2 of the Policy described how a middle manager would have handled a complaint of serious misconduct. But since the Plaintiff's misconduct was handled at the highest level by him and Sr Ho with the aid of the Plaintiff's Reports written by the Plaintiff's direct supervisors well familiar with their departments' operations and after observation of the Plaintiff's work performance, there was sufficient information to enable him to form a view as to the Plaintiff's work performance. He believed the direct supervisors shared his supervisory responsibility and they had the right to give instructions to staff and to supervise their work. But the Plaintiff adopted a negative attitude and refused to improve despite guidance/advice, so Mr Yeung reported to Sr Ho, who decided to dismiss the Plaintiff.

(o) Summary

226.I am of the view that the Plaintiff's Reports were prepared by the Plaintiff's direct supervisors (who supervised his daily work) according to their honest observations of the Plaintiff's work performance without any involvement by Mr Yeung. Eventually the annual Reports and the follow-up appraisals for the Plaintiff's poor work performance reached Mr Yeung for overall review. I have reminded myself that I should not consider each incident or each of the Plaintiff's Reports in isolation, but should bear in mind the cumulative effect of all the incidents and the totality of the evidence. Even so, I am not persuaded on balance that over a period of about a year the Hospital management/Mr Yeung engineered the Plaintiff's Reports to carry out the Hospital's secret agenda to retaliate against the EOC Complaint. There is no or no sufficient evidence on which I can be satisfied on the balance of probabilities that one of the reasons for the Hospital's acts and conduct was the fact that the Plaintiff had lodged the EOC Complaint. There was no discrimination by victimisation.

VII.  Conclusion

227.The Plaintiff's claim is unmeritorious and is therefore dismissed. However, the relevant legislation had a wide ambit in relation to what amounts to “disability” and what constitutes less favourable treatment. Although there is a degree of embellishment by the Plaintiff, I am not satisfied he brought the present proceedings maliciously or frivolously. I therefore make a costs order nisi that there be no order as to costs in the present proceedings (including all costs reserved).

Mr Richard Chan instructed by Messrs Joseph Leung & Co for the Plaintiff.

Mr Chan Chi Hung SC and Mr Michael Leung instructed by Messrs Munros for the Defendant.