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Tsun Sau Ching v Cheung Hung Aluminum Decoration Engineering Company LimitedCourt Ruling (In Traditional Chinese only)
Around the time the Claimant informed her then employer (the Respondent company) of her pregnancy, the Respondent company allegedly made threatening remarks to pressure her to resign, made work burdensome for her by re-posting her to another working location and installing a "clock-in" machine for all employees.
She then had a miscarriage and required an operation ("the Surgery") and allegedly asked her colleague to inform the Respondent company of it. Shortly after the Claimant resumed work, the Respondent company gave her one months' notice of termination of employment allegedly due to her poor performance.
The Respondent company refused to give any severance payment or proof of employment to the Claimant because she had filed complaints to the EOC against the Respondent company.
Thereafter, the Claimant brought proceedings against the Respondent company under both the SDO and DDO.
Claim for discrimination under SDO:
The Respondent company's threatening remarks and exerting pressure on the pregnant Claimant to resign amounted to treating her less favourably than someone who was not pregnant. Also, the termination of the Claimant's employment on the ground of her pregnancy was unlawful. The Respondent company was therefore held liable for breaching s.8(a) and s.11(2) of the SDO.
However, installing a "clock-in" machine was not unlawful discrimination because other employees also had to clock-in and there was no evidence showing that the Claimant faced more difficulty in meeting the clock-in requirement than others. Also, requesting the Claimant to work at another location was not supported by evidence as less favourable treatment.
The Respondent company's various enquires about the Claimant's pregnancy was not unlawful discrimination because the concerns were legitimate and understandable.
Claim for discrimination under DDO:
The Claimant's miscarriage and the physical ailments subsequent to the Surgery was a "disability" within the DDO's broad definition of the word.
However, the Respondent company was not liable for disability discrimination because there was no evidence showing it was aware of the Claimant's disability (i.e. her miscarriage or the Surgery) when her employment was terminated. There was no evidence that the Claimant's colleague, who did not act as witness, had informed the Respondent company about the miscarriage. Moreover, miscarriage was not stated in the Claimant's hospital records.
Claim for victimization
The Respondent company's refusal to give the Claimant severance payments and proof of employment because of her complaints to the EOC was unlawful discrimination by way of victimization. Therefore, the Respondent company was held liable for breaching the provisions against discrimination by victimization under s. 9(1) SDO and s. 7(1) DDO.
Remedy and award
Despite having a good working relationship with the Respondent company's owner in the past, the Claimant was abused with threatening remarks and put under unreasonably intense pressure for her pregnancy and miscarriage during her employment. The Court, having initially taken HK$55,000 as the starting point, awarded HK$90,000 as damages for injury to feelings.
The Claimant claimed for 7.8 months of income loss and alleged it was difficult for her to find a new job sooner because the Respondent company refused to give her proof of employment.
However, the Court was of the view that she could have reasonably found a new job in 3 months and thus only awarded 3 months' loss of income. The Claimant’s alleged lengthy period for finding a new job due to the lack of employment proof was unsupported by evidence.
In light of the Respondent company's oppressive treatment, the Court awarded HK$10,000 as exemplary damages.
The Claimant was awarded a total of HK$133,000, the breakdown of which is:
|Injury to feelings||HK$90,000|
|Loss of income||
The Respondent company was also ordered to issue a certificate of employment to the Claimant.
Waliyah v Yip Hoi Sun Terence and AnotherCourt Ruling
The 1st Respondent employed the Claimant as a foreign domestic worker. The 2nd Respondent was the 1st Respondent’s wife at the relevant time. Around 1.5 year into the Claimant’s employment contract, the Respondents suspected that the Claimant was pregnant. The 2nd Respondent asked the Claimant to urinate into a potty for a home-pregnancy test, which yielded a positive result. The pregnancy was later confirmed by a doctor. A few days later, the 1st Respondent terminated the Claimant’s employment by one month’s notice. Before the expiration of notice period, the Respondents asked the Claimant to move out of their home.
Asking the Claimant to undertake home-pregnancy test was sex discrimination. Absence of a subjective intention or motive to discriminate would not prevent an act from being discriminatory against an employee. This is a well-established principle affirmed by the Court in this case. The Claimant’s consent or co-operation to the discriminatory act was not determinative, and could be attributed to her general servile and subservient character or ignorance of her legal rights. Hence, by asking the Claimant to take a supervised pregnancy test, the 2nd Respondent treated the Claimant less favourably on the ground of her gender, because a male employee would not be asked to take such a test and to disclose such private information to his employer.
The 2nd Respondent, as the agent of the 1st Respondent (i.e. the Claimant’s employer), was personally liable for sex discrimination against the Claimant. This is because the Court inferred from the evidence that the 1st Respondent authorised the 2nd Respondent to instruct and supervise the Claimant, as the 1st Respondent was usually not at home during the day. Moreover, regarding the home pregnancy test, the 2nd Respondent acted as mistress of the Claimant, who complied with her request as a maid.
The 1st Respondent, as the principal of the 2nd Respondent, was also liable for sex discrimination by virtue of s. 46(2) and s. 47 of the SDO.
Furthermore, the 1st Respondent was liable for pregnancy discrimination by making the Claimant sign a notice of termination, and by demanding her to move out of the Respondents’ residence before the expiration of the notice period. Such acts also constituted (i) a breach of the implied term of mutual trust and confidence in the Claimant’s contract, (ii) a breach of the Employment Ordinance relating to pregnancy protection, and (iii) unlawful dismissal.
Lam Wing Lai v YT Cheng (Chingtai) LtdCourt Ruling EOC's Comment
The Plaintiff was employed in 2001 as an executive secretary to the Director of the Defendant. Her work performance was satisfactory, as evidenced by her salary increment after she had passed the probation period. Later, the Plaintiff became pregnant. In February 2002, the Plaintiff suffered a threatened miscarriage and she informed her boss of the condition. From June to August 2002, the Plaintiff needed to take frequent sick leave due to further pregnancy complications. During this period, the Plaintiff discovered that a permanent secretary was recruited. She worried that the new secretary would be her replacement, though the Defendant assured her that was not the case then.
After the Plaintiff’s childbirth, the Defendant’s human resources manager revealed to the Plaintiff that her boss considered that she should stay at home to look after her baby and take more rest in view of her poor health situation. Nevertheless, the Plaintiff resumed duty upon her completion of maternity leave in November 2002 as scheduled. Yet, she was moved to another work station with no properly equipped computer. Besides, she was not given her original duties. A week later, she was dismissed on the reason that a customer had complained about her.
The Plaintiff brought proceedings against the Defendant under the SDO and the FSDO.
The Court found that the Plaintiff had established the relevant facts, as stated above, so that inferences could be drawn to support her claims of pregnancy and family status discriminations. On the other hand, the Defendant had failed to offer a reasonable explanation to the Plaintiff’s dismissal. Therefore, it was held that the Defendant had discriminated against the Plaintiff under s. 8(a) and s. 11(2) of the SDO, as well as under s. 5(a) and s. 8(2) of the FSDO.
As a result, the Plaintiff was awarded a total of HK$163,500 and the breakdown of the damages was as follows:
|Loss of income||HK$88,500|
|Injury to feelings||HK$75,000|
As it took the Plaintiff four and a half months to find a new job, the Court decided that the Plaintiff should recover the loss of income for this period. Since the new job’s salary was lower than the one offered by the Defendant, the Court had also awarded the salary’s difference to the Plaintiff, but limited to a period of three months, as the Court realized that the work in the private sector offered no guarantee of security of salary and employment.
For the injury to feelings, the Court considered that the injury to the Plaintiff in this case was more serious than that in Yuen Wai Han v South Elderly Affairs Ltd because the former had worked for the Defendant for one and a half years in a respected position and had established friendship with colleagues. Therefore, the amount of injury to feelings awarded was slightly higher in the present case.
Further Case Development
The Defendant’s application for leave to appeal the above judgment (in favour of the Plaintiff) was dismissed. See the Decision (dated 29 March 2006).
Yuen Wai Han v South Elderly Affairs Ltd (appeal)Court Ruling (In Traditional Chinese only)
CACV 172 /2003
The Defendant appealed to the Court of Appeal against the above judgment of the District Court.
The appeal on liability was dismissed, whereas the appeal on quantum of damages was allowed in part.
The Court of Appeal decided that it was improper for the judge in the District Court to take into account twice the Defendant’s malicious conduct in making unfounded allegations against the Plaintiff to the police, the first time in calculating the injury to feelings, and the second time in the punitive damages. Therefore, the amount of punitive damages was reduced from HK$30,000 (as held in the District Court) to HK$10,000, making a new total amount of damages of HK$135,000.
Yuen Wai Han v South Elderly Affairs LtdCourt Ruling EOC's Comments
The Plaintiff applied for a post of supervisor offered by the Defendant, an elderly home. During the interview, the Plaintiff had informed the interviewer, from the Defendant, of her pregnancy. The interviewer was impressed with the Plaintiff’s qualification as a social worker and therefore, the two parties entered into an employment contract. As a result, the Plaintiff resigned her previous job. However, one week before the commencement of the employment, the Defendant rescinded the contract.
The parties had a dispute on the reason of termination. According to the Plaintiff, she was informed by the Defendant that after further internal discussion held after the interview, it viewed that a pregnant woman was not suitable for the job. The Defendant, on the other hand, explained that the termination was due to her lack of experiences required.
After the Plaintiff lodged a pregnancy discrimination complaint with the EOC, the Defendant, in response, made a false report to the police alleging that the Plaintiff had provided inaccurate information when she applied for employment.
The Plaintiff eventually brought proceedings against the Defendant under the SDO.
The Court, after examining all the circumstantial evidences, concluded that the Plaintiff’s pregnancy was at least one of the reasons for the rescission of her contract. Therefore, it was held that the Defendant had discriminated against the Plaintiff directly under s. 8(a) and s. 11(2) of the SDO.
As a result, the Plaintiff was awarded a total of HK$135,500 and the breakdown of the damages was as follows:
|Loss of income||HK$62,500|
|Injury to feelings||HK$62,500|
When assessing the loss of income, the Court mainly considered the income she could have earned if she had not left her original employment. Concerning the amount of the injury to feelings and the punitive damages, the Court had taken into account the Defendant’s malicious conduct in making unfounded allegations against the Plaintiff to the police, which had further intensified her sufferings in the incident.
Chan Choi Yin v Toppan Forms (Hong Kong) LtdCourt Ruling EOC's Comments
The Plaintiff had been employed by the Defendant as an Account Manager since 1997. Around a year later, she became pregnant. After giving pregnancy notice to the Defendant, the Plaintiff faced a series of less favourable treatments by the Defendant. These included derogatory remarks made by the senior management towards her pregnancy, repeated demands by the supervisor compelling her to return to work during sick leave and black-storm warnings, transfer to a new small team within the division which resulted in a substantial reduction of her income and difficult working conditions, etc.
The less favourable treatments continued when the Plaintiff resumed duty upon the completion of her maternity leave in 1999. Particularly, she was being transferred to another division against her will, resulting in a further reduction of income, as well as a demotion.
As a result, the Plaintiff lodged a complaint with the EOC. Later, the Defendant informed her that she would be made redundant due to the closing of her division. She was further told to withdraw her complaint lodged or she would be dismissed. Eventually she was dismissed in 2000.
The Plaintiff brought proceedings against the Defendant under the SDO.
The Court found that the Plaintiff had established the relevant facts, as stated above, so that inferences could be drawn to support her claims of pregnancy discrimination and victimization, whereas the Defendant had failed to offer a reasonable explanation to the Plaintiff’s less favourable treatment received and dismissal. It was held that the Defendant had discriminated against the Plaintiff under s. 8(a), s. 9(1) and s. 11(2) of the SDO.
As a result, the Plaintiff was awarded a total of HK$544,156.15 and the breakdown of the damages was as follows:
|Loss of earnings||HK$164,505.20|
|Future loss of earnings||HK$179,650.95|
|Injury to feelings||HK$200,000.00|
The loss of earnings was calculated basing on the amount that the Plaintiff could have earned if she had not been transferred.
For the future loss of earnings, the Court decided that the Plaintiff should recover six months’ loss of income because the Court viewed that she should be able to find alternative employment with similar salary within that period.
For the injury to feelings, the Court viewed that a substantial amount should be awarded to the Plaintiff to reflect the long period of injury suffered by her. While the Defendant’s unfair treatment towards the Plaintiff had lasted for two years since her pregnancy till her dismissal, the Plaintiff was further deprived of a favourable reference from the Defendant for more than three years while the legal proceedings were going on.
Chang Ying Kwan v Wyeth (HK) LtdCourt Ruling EOC's Comments
The Plaintiff had been employed by the Defendant as a Product Manager since 1995. She notified the Defendant of her pregnancy in 1997. Shortly afterwards, senior executives of the Defendant attempted to force her to resign, under the pretext of unsatisfactory work performance. She refused to resign and lodged a pregnancy discrimination complaint with the EOC. As a result of the complaint lodged with the EOC, the Defendant had unreasonably refused to grant her salary increment and put her under unnecessary pressure by imposing reporting requirements on her. As such situation continued, she eventually resigned upon her completion of the maternity leave.
The Plaintiff brought proceedings against the Defendant under the SDO.
It was held that the Defendant had discriminated against the Plaintiff directly under s. 8(a) and s. 11(2) of the SDO. The Court, after examining all the evidences, was satisfied that the Plaintiff’s pregnancy was a reason for the Defendant’s treatment of the Plaintiff, as the Defendant would not have treated a non-pregnant staff member in the same manner.
It was also held that Defendant had discriminated against the Plaintiff by way of victimization under s. 9(1) of the SDO. The Court concluded that as the Defendant had failed to prove the alleged poor conduct of the Plaintiff, it was the Plaintiff’s previous complaint lodged with the EOC which led to the denial of her salary increment and imposition of reporting requirements.
Although the Plaintiff resigned, her resignation was in response to the Defendant’s unlawful discrimination and should be regarded as constructive dismissal.
Note: The parties had later reached a settlement on the damages outside the Court.