Kan Che Sing v. Lucky Dragon Boat (Belvedere) Restaurant Ltd
Read the full judgment text of DCEO 10/2010 on BabelCite. This DCEO judgment.
1. The Plaintiff was employed by the Defendant as a waiter in its Chinese restaurant situated at Tsuen Wan. By this action, the Plaintiff sued the Defendant under sections 6(a), 6(b) and 11(2)(c) of the Disability Discrimination Ordinance [1] (“the Ordinance”).
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DCEO 10/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EQUAL OPPORTUNITIES ACTION NO.10 OF 2010 -------------------- BETWEEN
-------------------- Coram: Acting Chief District Judge S. T. Poon in Court Dates of Hearing: 19th and 20th December 2011 Date of Handing Down of Judgment: 7th August 2012 -------------------- JUDGMENT -------------------- Introduction 1.The Plaintiff was employed by the Defendant as a waiter in its Chinese restaurant situated at Tsuen Wan. By this action, the Plaintiff sued the Defendant under sections 6(a), 6(b) and 11(2)(c) of the Disability Discrimination Ordinance[1] (“the Ordinance”). 2.The main entrance of the Defendant’s restaurant is located at a level 13 steps above the pedestrian way and there was no facilities provided for wheelchairs to go up or down the stairs. In each and every time when wheelchair bound customers are to enter or exit the restaurant, 4 of the restaurant’s waiters will be summonsed[2] to carry together the wheelchair with the customer on it up or down the stairs. 3.On 21st April 2007, the Plaintiff was injured at the time when he helped carrying a wheelchair and the customer down the stairs. He sought treatment from the Yan Chai Hospital on the same date and was diagnosed to have suffered from sprained injuries to his left chest, left armpit region and his back. He was assessed by the Employees’ Compensation (Ordinary Assessment) Board to have suffered from 1% loss of earning capacity. 4.It is the Plaintiff’s case that he was at the material times a person with disability within the meaning of the Ordinance as a result of his aforesaid injuries. And that, he was discriminated on the ground of his disability by the Defendant in that:
5.Mr. Cheung, counsel for the Plaintiff, submitted in his opening that the Plaintiff had been subjected to unreasonable, hostile, disparaging or even humiliating treatment since he has suffered from the disabilities. 6.On the other hand, it is the Defendant’s case that they believed at the material times that the Plaintiff had already recovered from his injuries and the dismissal of the Plaintiff was due to his poor performance. The Law 7.Section 6 of the Ordinance provides that:
8.In connection with the comparison of cases under section 6, section 8 of the Ordinance provides that:
9.The principal focus of section 6 of the Ordinance is on ensuring equality of treatment[3]. 10.Section 6(a) and section 8, as described as direct discrimination, require the court to determine two separate questions:
11.To answer the comparator question, the court has to identify the circumstances attending the treatment given (or to be given) to the disabled person and examine what would have been done in those circumstances if the person concerned was not disabled[5]. 12.On the other hand, for section 6(b), as described as indirect discrimination, no comparison under section 8 is required. 13.Section 11(2)(c) of the Ordinance provides that:
Evidence 14.The Plaintiff gave evidence at trial. 15.As opposed to one would expect, Kong, who has been accused of acting discriminatorily in various ways against the Plaintiff, did not give evidence. Leung gave evidence for the Defendant. When asked about the reason why Kong is not called to give evidence for the Defendant, Leung said that it is because the incidents happened too long ago. Plaintiff’s evidence 16.The Plaintiff worked as a waiter in the Defendant’s restaurant from 18th April 2007 until 29th June 2008 when he was dismissed by Kong, on behalf of the Defendant, by giving him 7 days’ wages in lieu of notice. He was not told of the reason of his dismissal at the time. 17.He had initially a monthly salary of HK$8,000 and it was increased to HK$8,200 in March 2008. 18.As part of his job duties, whenever a wheelchair bound customer is entering or leaving the restaurant, he has to help lifting the wheelchair and the customer together with 3 other waiters up or down the 13 steps in front of the entrance. Approximately, he has to help lifting 12 wheelchairs on a weekday and 30 wheelchairs on a day in weekends. 19.On 21st April 2007, he was injured while carrying a wheelchair bound customer down the stairs. As he was using his left hand to carry the right side of the wheelchair at that time, the left side of his body was injured. He informed Kong of the accident immediately and went to Yan Chai Hospital to seek treatment. 20.He was given sick leaves by medical doctors for 17 days in the period between 21st April 2007 and 13th May 2007. However, the pain on his chest persisted and he needed medical attention thereafter. 21.In the period between 25th September 2007 and 23rd June 2008, he took in total 13 days’ leaves for attending follow up treatments and physiotherapies. Except for 1 day where sick leave was granted, the leaves taken were counted as rest days. 22.All along, the Plaintiff has provided the receipts of medical expenses to Kong promptly for reimbursement. However, despite repeated demands by the Plaintiff, no reimbursement has been made until the Plaintiff threatened to sue the Defendant at the Small Claims Tribunal. As late as in January 2008, the Defendant reimbursed the medical expenses incurred in the period between 21st April 2007 and 11th May 2007 to the Plaintiff. 23.Moreover, for a sum of HK$750 of medical expenses incurred in the period between September and November 2007, the Defendant only paid the amount in July 2008, after the Plaintiff obtained a judgment from the Small Claims Tribunal and executed it against the Defendant’s properties. 24.On the other hand, Mr. Lee Wing, another employee of the Defendant, was treated more favourably by the Defendant. In November 2007, Mr. Lee hurt his left foot by hot water in the course of his employment with the Defendant. The medical expenses incurred in the period between 4 November 2007 and 20 November 2007, totalling HK$588, was reimbursed promptly by the Defendant as early as in December 2007. 25.The Plaintiff has reported the accident to the Labour Department. The Employees’ Compensation (Ordinary Assessment) Board issued the Form 7 in September 2007 and assessed the Plaintiff as having 0.5% loss of earning capacity. Upon objection by the Plaintiff of the assessment, reassessment has been made and the loss of earning capacity was reassessed to 1% as shown in the Form 9 issued in February 2008. 26.The Defendant has received and had knowledge of the Form 7 and Form 9 and was well aware of the disabilities of the Plaintiff all along. 27.The real cause of the Plaintiff’s chest pain was not known until he received x-ray examination by a private laboratory in June 2008. It was revealed that there were mild compression fractures on his thoracic spine. 28.With legal aid, the Plaintiff took out proceedings against the Defendant for employees’ compensations in August 2008. The parties then reached a global settlement on both the employees’ compensation and common law claims in November 2008. There is nothing in the evidence in this action on the terms of the global settlement. 29.Since after the accident, Kong and Leung had been expressing dissatisfaction against the Plaintiff because of his taking of sick leaves. Notwithstanding his injuries, the Plaintiff was still required to help carrying wheelchairs up and down the stairs. And because of his injuries, the Plaintiff could only use his right hand to lift the wheelchairs. This was noticed by many colleagues including Kong and Leung. 30.On 27th June 2008, the Plaintiff was summonsed to help carrying a wheelchair bound customer up the stairs to the restaurant. When the Plaintiff came out from the restaurant, he noticed that Kong and another waiter were already standing at the left hand side of the wheelchair and Kong was displaying a ferocious facial expression to him. The Plaintiff then asked Kong to switch to a right hand corner so as to enable the Plaintiff to use his right hand to lift the wheelchair. Kong acceded to his request but was obviously dissatisfied. 31.On 29 June 2008, Leung witnessed the Plaintiff used only his right hand to carry wheelchairs. At about 2 p.m., when the Plaintiff was about to help carry a wheelchair bound customer to go down the steps, Leung showed a disparaging facial expression to the Plaintiff and yelled at him that there is no need for him to do it and told him to go back to the restaurant. The Plaintiff understood from Leung’s words, facial expression and gesture that Leung was dissatisfied with the Plaintiff’s inability to use his left hand to carry the wheelchair. 32.At 11 p.m. on the same day, Kong told the Plaintiff that he was dismissed by the Defendant with 7 days’ wages in lieu of notice. Kong did not tell him the reasons for his dismissal. Leung’s evidence 33.Leung gave evidence that the working performance of the Plaintiff was all along poor. In particular, he did not serve customers well and often deliberately took leave at the time when the restaurant was most busy. Leung had given repeated oral warnings to the Plaintiff regarding his poor performance but there was no improvement. 34.He did not yell at the Plaintiff as alleged nor did he show a disparaging facial expression to him. He never disliked the Plaintiff because of his disabilities. 35.The Plaintiff was dismissed due to his below par performance and it had nothing to do with his disabilities. It fact, he had made enquiries on 7 and 15 May 2008 to the Labour Department about the dismissal of the Plaintiff. It was not until about 1 week before the dismissal that the Labour Department confirmed with the Defendant that they could dismiss the Plaintiff after the employee compensations assessment being finalized. 36.Concerning the delay in reimbursement of medical expenses, Leung explained in his witness statement, briefly, that it took time for the account people to process the Plaintiff’s request for reimbursement. No details have been given to substantiate the explanation. At trial, however, Leung said that the Defendant needed to wait for the final outcome of the Employees Compensations proceedings before payment as the matter was covered by insurance. Discussion 37.As submitted by Mr. Cheung, the definition of “disability” under the Ordinance is a board one. On the evidence the Plaintiff was suffering from compression fractures on his thoracic spine rendering him unable to lift heavy objects with his left hand. In my view such disability falls within the meaning of the word under the Ordinance. 38.The complaints against the Plaintiff’s performance have not been substantiated sufficiently by evidence. There had not been any written warnings given to the Plaintiff regarding his alleged poor performance. The Defendant had been planning to dismiss the Plaintiff for quite some time and they have enquired with the Labour Department on its legality, obviously because of the fact that there was a pending claim under the Employees Compensations Ordinance. With this intention in mind, it would be improbable that no written warnings had been given to the Plaintiff in preparation of the dismissal, should there be existence of such poor performance. 39.Concerning the complaints about the Plaintiff’s attendance, no records of the Plaintiff’s absence had been produced by the Defendant to show that the Plaintiff had deliberately chosen the busiest dates to take leaves. On the other hand, from the evidence of the Plaintiff, none of the 9 occasions on which the Plaintiff went to see a doctor or attended prescribed x-ray examinations fell on a Saturday, Sunday or public holiday. 40.As submitted by Mr. Cheung, Kong is the best person to tell about the Plaintiff’s alleged poor performance. He was also the person who dismissed him. Whilst there was no suggestion of his unavailability, it is inconceivable that the Defendant chose not to ask Kong to give evidence for them, should the alleged poor performance really exist. 41.Furthermore, according to the Plaintiff, Kong had not given any reasons for his dismissal. Again, should it be the real reason for dismissing the Plaintiff, it is inconceivable that Kong would not mention the Plaintiff’s poor performance to him. Knowing full well that there was a real risk of litigation between the parties on the dismissal. 42.Another point to note is that, notwithstanding the alleged poor performance of the Plaintiff, his salary was increased for 2.5% in March 2008. 43.I reject, on the evidence before me, the Defendant’s allegation that the reason for the Plaintiff’s dismissal was because of his below par performance. 44.In my view, the decision to dismiss the Plaintiff was more probably due to the soured relationship between the parties since after the Plaintiff’s injuries. The Plaintiff had threatened to sue and indeed sued the Defendant for reimbursement of medical expenses and there was a potential claim for employees’ compensations against the Defendant. 45.The incidents happened on 27 and 29 June 2008 were illustrations of the parties’ situation. Here I accept the Plaintiff’s version of facts as to what had happened on the two days. As I have mentioned before in this judgment, I am sceptical about Kong’s failure to give evidence for the Defendant and adverse inference has been drawn against the Defendant because of this. The well known principles in Armory v Delamirie[6] is applicable in the present situation. 46.Having said that however, it would not be sufficient, merely on the facts described by the Plaintiff, to conclude that the rude treatments or hatred (as described by Mr. Cheung in his submission), against the Plaintiff by Kong and Leung on the relevant two days were due to the Plaintiff’s disabilities. Although I do not doubt the Plaintiff’s evidence on his subjective feelings in his interpretation on Kong’s and Leung’s expressions and gestures, what has been described in the evidence about their conduct was common to a person’s behaviour towards another person who he is not in good terms with. There has been no remarks or otherwise made by Kong or Leung that pointed to or directed at the Plaintiff’s disabilities. 47.Nevertheless, the hatred, as expressed by Kong and Leung towards the Plaintiff, stemmed from the very fact that the Plaintiff has, after his injury, caused a lot of troubles to Kong and Leung and the Defendant. I would say therefore, such hatred was actually caused by the Plaintiff’s disabilities. Direct Discrimination 48.All along, Kong and Leung must have knowledge about the disabilities of the Plaintiff. The Plaintiff had been regularly submitting medical certificates to them and in the course of moving up or down the wheelchairs, they must have noticed that the Plaintiff could not use his left hand. Besides, the Defendant has been provided with the Form 7 and Form 9; and was told by the Plaintiff in February 2008 that he would appeal against the assessment results. 49.There is no justifiable reason provided by the Defendant for the delay in repaying medical expenses to the Plaintiff. No basis has been given in putting the blame on the Defendant’s accounting people. When compared with the situation of another employee Mr. Lee, the reimbursement of medical expenses to the Plaintiff was indeed seriously delayed without apparent reasons. 50.In my view, the Plaintiff has been treated less favourably by the Defendant, through Kong and Leung, by the delay in reimbursement of medical expenses to the Plaintiff. And such less favourable treatment was caused by the Defendant’s hatred, through Kong and Leung, towards the Plaintiff, as mentioned in the above paragraphs. 51.In my view, as the cause of the troubles was in fact a result of the Plaintiff’s disabilities, the hatred can be regarded also as aiming at the Plaintiff’s disabilities. Therefore, it is my finding that the less favourable treatment was given on the ground of the Plaintiff’s disabilities. 52.Moreover, the dismissal of the Plaintiff was also due to the same hatred against him. For the same reasons, I find that the Defendant contravened section 11(2)(c) of the Ordinance. Indirect Discrimination 53.Concerning indirect discrimination, in my judgment, the complaint of the Plaintiff falls squarely within section 6(b) of the Ordinance. 54.Knowing full well that the Plaintiff can only use his right hand to lift the wheelchairs and his injuries were caused by helping to lift a wheelchair, the Defendant should not have continued requiring the Plaintiff to help lifting wheelchairs. The Plaintiff was employed as a waiter. Lifting of wheelchairs should not be essential to the Plaintiff’s duties in his employment. 55.I find that the Defendant has contravened section 6(b) of the Ordinance in requiring the Plaintiff to help lifting wheelchairs after his being injured. Damages 56.The Plaintiff claims against the Defendant for the injury to his feelings and loss of income. 57.Regarding the injury to feelings, considering the amount awarded in similar cases[7], I find HK$50,000 the appropriate amount to be awarded under this head. 58.As for the loss of income, I accept the Plaintiff’s evidence that he could only secure a job after 185 days from his dismissal. With HK$8,610 as the monthly income in the employment of the Defendant, the loss of income is HK$51,181.70 after deducting the 7 days’ wages in lieu of notice received from the Defendant. 59.I do not think the Defendant’s wrongful acts of discrimination resulted in any future loss of earnings of the Plaintiff. 60.Judgment is therefore entered against the Defendant in favour of the Plaintiff in the sum of HK$101,181.70 and interest thereon at 4% per annum from the date of writ until judgment and thereafter at 8% per annum until payment. 61.Costs order nisi that the costs of this action be to the Plaintiff to be taxed if not agreed, with certificate of counsel. The costs order nisi shall become absolute upon the expiry of 14 days from the date of this judgment. 62.The Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.
Mr. Kam Cheung instructed by Messrs Paul C K Tang & Chiu for the Plaintiff. Ms. Koo Yeuk Lan instructed by Messrs Michael Pang & Co for the Defendant. [1] Cap.487. [2] The manager will press a bell installed at the entrance to notify the waiters whenever a wheelchair bound customer needs help. [3] M v Secretary for Justice [2009] 2 HKLRD 298, at p.325. [4] Ibid, at p.326. [5] Purvis v State of New South Wales (2003) 217 CLR 92, [1998] HCA 18. [6] (1722) 1 Str 505. [7]郭永新 v羅容佳 DCEO 2/2007, Ip Kai Sang v Federal Elite Limited DCEO 8/2006. |