DCEO 16/2018

Background Facts

The Claimant was employed by the Respondent since June 2010. On 1 August 2016, the Respondent assigned the Claimant to work on the construction of the Tseung Kwan O to Lam Tin Tunnel (“the Project”) as the Blasting Team Leader. The contractor for the Project was the Leighton-China State Joint Venture (“the Joint Venture”) established between the Respondent and China State Construction Engineering (Hong Kong) Limited (“China State”). The Project required blasting, which involves the controlled use of explosives to break rocks and excavate large areas for construction work. On 28 February 2017, the Respondent terminated the Claimant’s employment. 

The Claimant alleged that his employment was terminated as a result of his (non-Chinese) race, but lacked direct evidence to prove his allegation. The Claimant therefore asked the Court to make findings on primary facts and then draw inferences from the circumstances that disclosed a possibility that his employment was terminated on the ground of race. These findings of primary facts included:

1. The Claimant was very competent and outstanding at his job;
2. The Claimant had been bypassed and his role as Blasting Team Leader usurped; and
3. The term “Gweilo” was said on the Project. 
    

Court’s Decision

The Court outlined that the consideration of a claim of direct discrimination entailed two questions:

1. Whether the Respondent had treated the Claimant less favourably than it treated or would treat others (the “Comparator Question”); and
2. Whether the less favourable treatment (if any) was on the ground of the Claimant’s race (the “Causation Question”).

Court’s finding and judgment on Claimant’s job performance

The Court agreed that the Claimant was technically very competent and good at his work. However, the Court accepted the evidence of different witnesses (being colleagues of the Claimant at the material time) that the Claimant had an abrasive character, was short-tempered, was difficult to talk to and had poor working relationships even with members of his own Blasting Team (e.g. the Claimant moved office as he could not co-exist in the same office with his team members).

Court’s finding and judgment on the Claimant’s allegation that he had been bypassed and his role usurped

The Claimant alleged that although he was Blasting Team Leader, his views were not sought regarding the hiring of Blasting Engineers (i.e. the Joint Venture did not want non-Chinese Blasting Engineers on the Project). Further, his staff did not get back with information he needed, refused to attend his meetings and/or there was a lack of communication to him in relation to important blasting documents.

The Court accepted the Respondent’s evidence that the reason behind the preference of not hiring non-Chinese Blasting Engineers was due to linguistic ability rather than race (i.e. the Respondent wanted to ensure that the Blasting Engineers would be able to communicate with local shotfirers in Cantonese). Even the Claimant conceded that in his employment contract, he did not have authority to make final hiring decisions anyways. So when an appointment of a Chinese Blasting Engineer was made, the making of such a decision did not amount to bypassing the Claimant or usurping his function as alleged. 
Besides, any alleged preference relating to the appointment of Blasting Engineers did not relate to the Claimant’s post as Blasting Team Leader. Since the decision to terminate the Claimant’s employment was made internally by the Respondent, the Joint Venture’s preference of not employing non-Chinese Blasting Engineers would not have anything to do with the decision of the Respondent in terminating the Claimant’s employment.

The Court found that there had been non-engagement problems in the Joint Venture because the staff members came from two separate companies respectively. There was nothing in evidence which showed that such non-engagement problems were due to race. Although the Claimant indeed had been excluded from certain communications, but it had nothing to do with race because the Claimant’s other non-Chinese colleagues were not so excluded. Evidence showed that such exclusions were due to the Claimant’s poor inter-personal relationships with others rather than his race. 

The Court found that the working relationship between the Claimant and his subordinates was very tense. Blasting Team members would talk to the Claimant’s non-Chinese supervisor rather than to the Claimant. However, this was not evidence for “bypassing”. The Claimant’s non-Chinese supervisor was only acting as a bridge of communication between them and the Claimant. Moreover, this only showed that those team members would rather talk to another expatriate than to the Claimant.

Regarding the Claimant’s allegation that he was kept ignorant of some blasting documents, the Court took the view that there was no realistic chance for the Joint Venture to exclude the Claimant in the preparation of blasting documents in the first place. Being the Blasting Team Leader, the Claimant was given the sole authority to sign off and approve the blasting documents before they were submitted to the government. 

Court’s finding and judgment on the use of “Gweilo” in the Project

The Claimant alleged that the use of the term “gweilo” (鬼佬) in the Project showed that there had been racial hostility in the work context. 

However, the Court held that even if the term “gweilo” was used in a work place, it would not necessarily carry a derogatory meaning as alleged. The mere use of the term “gweilo” cannot show that there was any racial discrimination, not to mention termination of the Claimant’s employment on the ground of race in the present case. 

It was also important to note the context in which the term “gweilo” had been allegedly used. The Court rejected the Claimant’s evidence that people were referring to him in their conversations in which “gweilo” was used. The Court held that the Claimant only overheard that other people were using the term; those people were not even talking to him at the material time. The fact that the Claimant was one of the few non-Chinese present on the Project was not enough to prove that he was indeed the subject matter of those conversations. 

The Claimant referred to conversations between colleagues whereby China State employees made the statement “why so many gweilos are working on the project”. He also referred to internal work emails addressing him and other non-Chinese colleagues as “Foreigner”. However, the Court was not prepared to make any finding that there was a hostile and discriminatory working environment against non-Chinese employees on the basis of such hearsay evidence. The circumstances under which those China State employees made that statement was unknown. Likewise, the usage of the word “Foreigner” in one email was not adequate for the Court to find that there was a background of racial hostility.  

Court’s conclusion

The Court held that the Claimant’s employment was terminated not on the ground of his race, but because of his aforesaid problems. In answer to the Causation Question, those problems were the real cause of the termination of his employment.

In answer to the Comparator Question, the Court took the view that a hypothetical comparator should be a Chinese who is a Blasting Team Leader and had the same problems as the Claimant (i.e. someone who had poor working relationship with others and who could not work with others as a team). The Court took the view that the Respondent would have likewise terminated the employment of such a person.

The Claimant’s action was dismissed.

HCMP 424/2020

Background Facts

The Company operated German Swiss International School. The Company’s Articles of Association emphasised its German character by entrenching its control into the hands of its German speaking members. There were individual Articles (“the relevant Articles”) which: -

1. required a member to be fluent in written and spoken German before he/she was eligible for election to be a Board member;
2. required all Board meetings as a rule to be conducted in German; and
3. only permitted members with a German speaking background to be the Chairman, the first or second Deputy Chairman and the Treasurer.

The Company sought a declaration that the relevant Articles contravened the Race Discrimination Ordinance (Cap. 602) (“RDO”) and were thus void and unenforceable. On the other hand, a member of the Company opposed the Company’s application and sought a declaration that the relevant Articles did not contravene the RDO.

Court’s Decision

There was no dispute between the parties that the relevant Articles were indirectly discriminatory within the meaning of s. 4(1)(b) of the RDO because the proportion of non-German, Swiss and Austrian members of the Company who could comply with the relevant Articles was far smaller than the proportion of German, Swiss and Austrian families. The Court also found that there was no justification for the inclusion of the relevant Articles in the Company’s Articles of Association.

However, in order for the relevant Articles to contravene the RDO, it is necessary to demonstrate that the discrimination comes within one of the six areas of activity to which the RDO applies (those areas of activity being (1) employment, (2) education, (3) goods, facilities, services and premises, (4) public bodies, (5) barristers, and (6) clubs). In the present case, the relevant activity would be “discrimination by clubs” under s.36 of the RDO.

Therefore, the central legal issue for the Court’s determination was whether the Company was a “club” within the definition in s.2 of the RDO. If the answer was “no”, the RDO did not apply to the Company and the discrimination arising from the relevant Articles would not be unlawful under the RDO.

“Club” as defined in s.2 of the RDO “means an association, incorporate or unincorporate, of not less than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes and which provides and maintains its facilities, in whole or in part, from the funds of the association.”

The Court viewed that associations formed to carry out non-commercial and commonly non-profit making activities are of a type in which discrimination is considered by the legislature objectionable, and a school falls within this genus. Here, the Company’s facilities are the school buildings and the wide range of educational services, which is a relevant consideration of whether it falls within the common characteristic of the purposes defined in s.2 of the RDO. Therefore, the Court concluded that the Company fell within the meaning of a “Club” under s.2 of the RDO. As the Company was a “club” for the purposes of s.2 and s.36 of the RDO, the relevant Articles, being in breach of s.4(1)(b) and s.36 of the RDO, were therefore void and unenforceable.

DCEO 3/2013

Background Facts

The Plaintiff is a European man recruited by the Defendant specifically for reviewing its personal styling services. In his report to the Defendant’s Chairman, the Plaintiff criticised his superior’s performance.

Ultimately, the Plaintiff resigned, alleging his Chinese colleagues with less workload were receiving more remuneration than him, such that he was unlawfully discriminated by the Defendant on the basis of race. He claimed the Defendant breached s. 10(2)(b) of the RDO. In gist, his case was one of unfavourable treatment as a result of his criticism of his superior’s performance, and difference of race.

Initially, the Plaintiff brought his claim at the Labour Tribunal. As his allegations involved race discrimination, his proceedings were ordered to be transferred to the District Court, where he was directed to issue a fresh writ and Statement of Claim.

At the District Court, the Defendant applied to strike out the Plaintiff’s Statement of Claim on the basis that it (i) was time-barred, and (ii) disclosed no reasonable cause of action.

Court’s Decision

Regarding (i), the Plaintiff’s claims under the RDO were not time-barred because the date he instituted proceedings at the Labour Tribunal was taken as the date of institution of proceedings at the District Court under s.70 of the RDO.

As to (ii), the Court was not persuaded that there was a causal link between the alleged unfavourable treatment and the Plaintiff’s race. Apart from alleging that all his colleagues of same rank, who happened to be of Chinese origin, were receiving a better remuneration, the Plaintiff has not provided any evidential basis for drawing the inference that any such differences, if proved, was due to a difference in race. As there was no chance of success in so far as his claims under the RDO were concerned, the Court found no reasonable cause of action and struck out his claims under the RDO.

Nevertheless, the Court’s decision to strike out was without prejudice to the Plaintiff’s right to bring any employment claim again at the Labour Tribunal.