李國珍 v. 徐培正經營東京電腦配件公司

DCEO 14/2019

[2020] HKDC 998

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 14 OF 2019

--------------------

--------------------

-------------------------------------------

ASSESSMENT OF DAMAGES

-------------------------------------------

1.  This is a case of discrimination by an employer against a pregnant employee by dismissing her.

2.  The respondent did not file a Notice of Response to the Notice of Clam as required by Rule 10 the District Court Equal Opportunities Rules (“the EO Rules”) despite having been given further time to do so.  Pursuant to Rule 13 of the EO Rules and upon such default, judgment on liability with damages to be assessed was entered against the respondent on 25 May 2020.

3.  This is the assessment of damages.  The respondent did not appear to contest.  I was satisfied that he had due notice of this assessment and therefore proceeded in his absence.

4.  By the default judgment, the respondent was adjudged, as claimed by the claimant, to have contravened:-

(a)     Section 8(a) of the Sex Discrimination Ordinance Cap 480 (“SDO”) by discriminating against the pregnant claimant and treated her less favourably than a person who was not pregnant;

(b)     Section 11(2) of the SDO by discriminating against the clamant, a woman employed by the respondent, by dismissing her;

(c)     Section 5 of the Family Status Discrimination Ordinance Cap 527 (“FSDO”) by discriminating against the clamant by treating her less favourably than another person on the ground of her family status; and

(d)     Section 8(2) of the FSDO discriminating against the claimant, a person employed by the respondent who has family status, by dismissing her.

The facts

5.  Based on the uncontested evidence of the claimant, which I accept, I find the following.

6.  Since December 2014, the claimant has been employed by the respondent as a sales lady.  The claimant earned on average HK$12,500 to HK$12,700 a month, inclusive of diligence bonus, commission and MPF.  She was also paid a year-end bonus equivalent to her basic monthly salary of HK$11,000.

7.  In November 2017, the claimant was confirmed to be pregnant.  She was then not paid the year-end bonus for 2017 on the pretext that she would be receiving paid pregnancy leave.

8.  However, she was not paid the salary for her pregnancy leave.

9.  On 25 June 2018, the respondent’s shop manager Mr Wan gave her a cheque for HK$27,992 being the salary for her pregnancy leave and told her that the respondent could no longer employ her as she had to take care of her son and her new born baby.  Mr Wan also said that the respondent would consider that she had resigned herself.

10.  In July 2018, the claimant complained to the Equal Opportunities Commission.

11.  On 20 September 2018, the claimant received a letter from the respondent complaining that the claimant has failed to turn up for work after receiving the said HK$27,992 and informing the claimant that the respondent decided to claim against her payment in lieu of notice to terminate in the amount of HK$11,000 (“the Respondent’s Letter”).

12.  After she was dismissed, she was out of a job.

13.  Before she was so dismissed by the respondent, the claimant and her household lived with a relative and paid the relative HK$9,000 a month as rent and fee to look after her children during day time when she and her husband had to work.  As she was dismissed and was out of a job, the household could no longer afford the HK$9,000 a month to continue with this arrangement.  In October 2018 her household moved out from the house of the relative and she had to take care of her children instead of working.

Damages for injury to feelings

14.  The principles to be applied in the assessment of the awards of damages for injury to feelings are summarized in HM Prison Service & Others v Johnson [1997] ICR 275, at 283:-

“We summarise the principles which we draw from these authorities: (i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham M.R., be seen as the way to "untaxed riches." (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (v) Finally, tribunals should bear in mind Sir Thomas Bingham's reference to the need for public respect for the level of awards made.”

15.  In the Hong Kong Court of Appeal case of 袁慧嫺 訴 南方安老事務有限公司  [2005] 2 HKLRD 277, Yeung JA (as he then was), in respect of the minimum amount of damages to be awarded for injury to feelings in cases involving the discrimination of a pregnant woman, held thus in paragraph 46:-

「… 但法庭必須強調，以任何方式歧視一名懷孕婦女，是極為嚴重的違法行為，法庭亦必會向該名被歧視的懷孕婦女作出可觀的情感傷害賠償，以反映法庭保護懷孕婦女的決心。一般來說，賠償額不應低於50,000元。」

16.  This passage was recently quoted and applied by District Judge Yee in 秦秀清 訴 長鴻鋁窗裝飾工程有限公司 (DCEO 3/2018, unrep, 30 December 2019).  There, the learned judge observed that the above passage was said some 15 years ago and held that the starting point now should be increased to HK$55,000.  I respectfully agree.

17.  I take into account that in the present case, apart from the discriminating act of dismissal, there was no further conducts or acts of discrimination (save that which would be considered under punitive damages).  I therefore consider this case falls within the less serious band of cases and would award the sum of HK$55,000 for damages for injury to feelings, as sought by the claimant.

Loss of earnings

18.  To recap, after the claimant was dismissed on 25 June 2018, she was out of a job.  By October 2018, her household had to move out from the house of the relative and she had to take care of her children instead of working. She now claims for the loss of income for the 3 months of July, August and September 2018.  I think the claim is reasonable and is proved.  I so award.  I would calculate the award at HK$12,700 a month, which totals to HK$38,100.

19.  I accept that the claimant was not paid the year-end bonus for 2017 and she also by the dismissal lost the pro-rata amount of the year-end bonus for 2018 which she otherwise would have earned.  The loss of year-end bonuses thus amount to HK$11,000 + HK$11,000 x 203/365 days = HK$17,118.

20.  Her total loss of earnings is HK$55,218, and I so award.

Punitive damages

21.  Punitive damages are expressly provided for in section 76(3A) of SDO as one of the relief the court may award in respect of contravention of section 11, among others.  Punitive damages have been awarded in a number of cases, such as the cases of 袁慧嫺and 秦秀清 mentioned above, where there are high-handed, oppressive, insulting or contumelious behaviour by the respondent.

22.  I accept Ms Ng’s submission that the Respondent’s Letter was a high-handed and oppressive move by the respondent to threaten the claimant with a false claim so as to intimidate her from further pursuing her claim against him.  I also accept the claimant’s evidence that her feelings were further injured by the false claim.  I accept that an award of punitive damages is appropriate.

23.  The Respondent’s Letter, however, was a short one containing 2 sentences, containing the bare allegation that it was the claimant who had resigned and the indication that the respondent decided to claim a month’s pay in lieu.  The respondent had not made any other insulting or discriminating remarks there.  I understand that the respondent also had not carried out his threat by actually making the false claim, unlike what the respondent did in 袁慧嫺.  Considering the level of such award in 袁慧嫺and 秦秀清 (in both of which cases HK$10,000 was awarded) and the comparatively worse behaviour of the respondents in these two case, I think HK$6,000 is the appropriate amount in the present case and would so award.

Disposal

24.  In the premises, I assess the total amount of the damages to be awarded as HK$116,218 and order judgment be entered against the respondent for the said amount.

25.  I award interest (a) on the amount of loss of earnings of HK$55,218 at half judgment rate from 26 June 2018 until the date of this assessment, (b) on the award for injury to feelings and punitive damage totalling HK$61,000 at 2% per annum from the date of the Notice of Claim herein until the date of this assessment, and (c) on the entire award of HK$116,218 at judgment rate from the date of this assessment until full payment.

26.  I further order the respondent to pay the claimant’s costs of this assessment to be taxed if not agreed.

27.  I thank Ms Ng for her assistance.