LEE CHI BUN v. NOVARTIS PHARMACEUTICALS (HK) LIMITED

DCEO 7/2019

[2021] HKDC 1101

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 7 OF 2019

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J U D G M E N T

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1.  These proceedings are brought by the claimant (“Lee”)  against the respondent (“Novartis HK”)  under s.6 and 11 of the Disability Discrimination Ordinance (“DDO”). Lee had been employed by Novartis HK since August 2004. His employment contract was terminated by Novartis HK on 23 December 2016 on the ground of redundancy.

2.  At the material times, Lee was the Sales Supervisor in Novartis HK’s “Retina Team” within the company’s Ophthalmology Business Unit.  His immediate supervisor was Mr Paul Chong (“Chong”), the Sales Manager.  His 2^nd line supervisor was Mr Wong Chi Wai (“Wong”), the head of the Ophthalmology Business Unit.

3.  It is an undisputed fact that Lee started to take sick leave on 14 December 2015.  He was subsequently diagnosed with end-stage renal failure and/or chronic kidney disease and had to undergo transplant surgery.  As a consequence, apart from returning to work for one day on 8 January 2016, his illness necessitated him having to take sick leave for almost the whole of 2016.  

THE PARTIES’ RESPECTIVE CASES

Lee’s case

4.  Lee’s claim is brought on ground that his employment was terminated due to his illness.  His case is that on 8 January 2016 when he returned to the office after being discharged from hospital, he was approached by Novartis HK’s Senior Human Resources Manager, Ms Wang Yue (“Wang”), who informed him that he had scored unsatisfactorily in his 2015 Performance Review, and he was asked to resign, or his employment would be terminated.  Lee claims that prior to this occasion, he had not received any notification from his employer that his performance was unsatisfactory, and that he had in fact won several awards for performance.

5.  Lee’s case in fact has two limbs:-

(1)  The first limb is that on 8 January 2016 when he first returned to work after his initial diagnoses and hospitalization, he was discriminated against when Wang asked him to resign, or his employment would be terminated.

(2)  The second limb is that he was discriminated against when Novartis HK eliminated his position during the integration exercise in 2016.  Lee claims that he was the only staff member who had to leave the company as a result of the integration, and the company’s contention that middle management roles had to be eliminated was an excuse to get rid of him because his position was not truly a “middle management role”. 

6.  Pausing here, in the Notice of Claim, Lee in fact has only put forward the first limb but not the second limb.

7.  In his witness statement, Lee also claims that he had been told by a colleague that Novartis HK had changed its incentive scheme in 2016 “because of him [Lee]”.  Under the incentive scheme, before 2016, in order to be eligible for a monthly incentive payment, an employee had to work at least 5 days in that month.  However, in 2016, an employee had to work at least 10 days in that month in order to have the monthly incentive payment.

8.  On the first day of the trial, I asked Lee whether the change in the incentive scheme in 2016 had any impact on him.  After some exchanges, Lee abandoned his claim based upon the incentive scheme.  In my view, this is a concession which must be made by Lee.  Lee did not go to work at all for most of 2016. According to him, he only worked 1 day in 2016.  That being the case, even if there had not been any change in the incentive scheme in 2016 (i.e. the 5-day work requirement remained in force in 2016), Lee would still not be able to obtain any payment under the incentive scheme in 2016.  The change in the incentive scheme in 2016 has not affected Lee’s interest in any way.

9.  Lee has given evidence in support of his case.

Novartis HK’s case

10.  Novartis HK does not dispute that Lee did suffer from kidney disease at the material times such that he was under a disability as defined in DDO s.2.

11.  Novartis HK’s case is that the termination of Lee’s employment, which occurred in December 2016 (almost one year after he started to take sick leave), was not related to his disability, but because his position had been eliminated when Novartis HK’s Ophthalmology Business Unit was integrated with that of another company, namely Alcon.

12.  In the integration exercise, Lee’s position (Sales Supervisor)  was eliminated (together with the Sales Manager role previously occupied by his immediate superior Chong)  by senior management in Hong Kong upon commercial and manpower considerations, and following guidance issued by Novartis’ global management.  The decision to remove the role was made in mid-2016, but out of consideration of Lee’s illness, Novartis HK did not terminate his contract until 23 December 2016, just before the deadline of 1 January 2017 imposed by the global management.

13.  Both the Sales Supervisor and the Sales Manager position had not been reinstated after the integration.

14.  Lee’s employment was terminated in December 2016 on the ground of redundancy and not on the ground of poor performance as alleged by Lee.

15.  Lee was rated unsatisfactory in his 2015 Performance Review.  He was rated “1” (unsatisfactory)  on one of the components of his performance (known as “Values and Behaviours”).  However, the 2015 Performance Review and his unsatisfactory rating had been given well before Novartis HK knowing that he was ill.  The annual performance review process began in October 2015.  Lee’s rating was submitted by Novartis HK to regional and global management, who confirmed the rating in late November 2015.  All these had been completed before Lee started taking sick leave.

16.  Lee’s illness or disability, or Novartis HK’s knowledge of his disability, was not and could not have been a factor in the assessment of Lee’s work performance.

17.  Novartis HK has called Wong and Wang to give evidence in support of its case.

THE PRINCIPLES

18.  DDO s.6 provides:-

“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” 

The type of discrimination under s. 6(a)  is often referred to as “direct discrimination”.

19.  DDO s.11(2)(c)  states:-

“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 the 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 that person; or

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

20.  DDO s.3 provides:-

“Act done because of disability and for other reason:

If —

(a)  an act is done for 2 or more reasons; and

(b)  one 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 purposes of this Ordinance, the act is taken to be done for the reason specified in paragraph (b).”

21.  In determining the issue of direct discrimination, DDO s.6(a)  requires the court to compare the treatment of the complainant and that would be received by another person without disability. In this regard, s.8 provides:-

“Comparison of cases under section 6

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.”

22.  DDO s.6(a)  is substantially similar to Sex Discrimination Ordinance (“SDO”)  s.5(1)(a).  In Leung Kwok Hung (Long Hair)  v Commissioner of Correctional Services[1], the Court of Final Appeal laid down a four-step approach in determining whether there was sex discrimination under SDO s.5(1)(a).  I am of the view that the same approach would also be applicable in determining whether there was disability discrimination under DDO s.6(a).  In the light of the Court of Final Appeal’s judgment in Leung Kwok Hung case, I suggest that the four-step approach in the context of DDO s.6(a)  should be as follows:-

(1)  There must be a difference in treatment between one person with a particular disability (i.e. the complainant)  and another person, real or hypothetical, without that disability, (i.e. the compared person).

(2)  The relevant circumstances between the complainant and the compared person are the same or at least not materially different.

(3)  It must then be shown that the treatment given to the complainant is less favourable than that given to the compared person.

(4)  The difference in treatment is on the basis of the presence or absence of the disability.

23.  The burden is on the claimant to prove discrimination on the balance of probabilities.  Once the court is satisfied that the claimant is able to show from the primary facts that inferences could be drawn from the circumstances that disclosed a possibility of discrimination, the court would look to the respondent for an explanation.  If there is no reasonable or satisfactory explanation put forward, then the court would be entitled to infer discrimination as a matter of common sense.[2]

24.  In respect of evaluating the evidence given by witnesses, a valuable guidance can be found in Hui Cheung Fai and another v Daiwa Development Limited[3], in which DHCJ Eugene Fung SC said:-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce)  ……

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: e.g. Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011)  §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80.   I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002)  5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics)  Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).”

25.  Similar guidelines can also be found in Lee Fu Wing v Yau Po Ting Paul[4], in which DHCJ Au (as he then was)  said:-

“53. In assessing the credibility of a party’s case on a particular issue, I accept the submissions of [counsel] that the Court should take into considerations the following:-

(1)  Whether the party’s case is inherently plausible or implausible.

(2)  Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise)  which is undisputed or indisputable.

(3)  Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests.  This is relevant to the assessment of his overall credibility.

(4)  The demeanour of the witnesses.”

26.  In respect of lies told by a factual witness on a central issue, the reminder given by Sir John Dyson in MA (Somalia) v Secretary of State for the Home Department[5] has to be borne in mind:-

“31. ....... where a claimant tells lies on a central issue, his or her case will not be saved by general evidence unless that evidence is extremely strong. It is only evidence of that kind which will be sufficient to counteract the negative pull of the lie. But much depends on the bearing that the lie has on the case……

32. Where the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence……

33.  ...... where the appellant tells lies on a central issue in the case, the [tribunal] may conclude that they are of great significance ……  It will be a matter for the [tribunal] to decide whether the general evidence is sufficiently strong to counteract what we have called the negative pull of the appellant’s lies.”

UNDISPUTED OR INDISPUTABLE FACTS

27.  The undisputed or indisputable facts are as follows:-

(1)  Lee started taking sick leave from 14 December 2015.  He was hospitalized from 15 December 2015 for around 7 days, then rested at home until 7 January 2016, the end of his first sick leave period.

(2)  On 8 January 2016, Lee returned to work and had a meeting with Wang at her request.

(3)  During this meeting, Wang told Lee that his performance was unsatisfactory, and Lee was given the option of resigning.  In this regard, the parties differ on whether Lee had been given the option of undergoing a Performance Improvement Plan (“PIP”)  or whether he had been told that his employment would be terminated if he did not resign.

(4)  At the meeting, Lee had also informed Wang that he was ill.

(5)  Lee indicated that he wished to have time to consider the matter and agreed to talk again after consulting specialist doctor on 11 January 2016. However, there was no further discussion between Lee and Wang at a later time.

(6)  Subsequently Lee took sick leave for most of 2016 due to his illness.

(7)  Novartis HK did not terminate Lee’s employment until the end of 2016.

(8)  There was an integration of Novartis HK’s Ophthalmology Business Unit with that of Alcon, and that in August 2016, Lee’s position of Sales Supervisor was eliminated.

(9)  Novartis HK issued two emails (dated 27 January 2016 and 4 March 2016 respectively)  to all associates (including Lee)  informing them of the integration and the likely upcoming changes to staffing arising from the integration.  The two emails to Lee were sent to Lee’s company email address. In the email dated 4 March 2016, it was mentioned that Alcon’s team would remain in place, whilst there would be staff transfer which would be communicated in due course.

(10)  From time to time, Lee and Wang communicated by email or by phones. Wang had made attempts on at least two occasions to talk to Lee about his position being eliminated in the integration exercise:-

(a)  The first such documented attempt was on or around 19 August 2016 during a phone conversation which was subsequently referred to in an email from Lee dated 24 August 2016.

(b)  The second occasion (not disputed by Lee)  was on 20 December 2016 when Lee called Wang at her request where she offered him a post-termination drug plan.  When cross-examining Wang, Lee stated that Wang had mentioned during the phone conversation that Lee’s post was gone as a result of organization changes.

(11)  Lee did suffer from a major illness and that he was under a disability at the material times relevant to these proceedings - the material times refer to the period from 13 December 2015 (the date on which Lee started to take sick leave)  to 23 December 2016 (the date on which Novartis HK terminated his employment).

(12)  On 23 December 2016, whilst Lee was on sick leave, Novartis HK sent Lee an email terminating his employment on the ground of redundancy.  The email stated that Lee’s position, i.e. Sales Supervisor, was eliminated as a result of a restructuring of the Ophthalmology Business Unit, which had been combined or integrated with the ophthalmology business of another company Alcon.  In that email, Novartis HK said:-

“This email serves as a formal notice to you that your employment with Novartis HK Pharmaceuticals (HK)  Ltd is to be terminated on the date hereof on grounds of redundancy. With Global announcement of organization change in end of January and local organization change happened in 1 Apr 2016, we have eliminated the sales manager role in your current team in June this year, and we also have to combine sales territories due to substantial decline in sales volume in your business unit, thus your position as sale supervisor has been eliminated.”

(13)  After the integration, Chong’s Sales Manager position and Lee’s Sales Supervisor position have not been reinstated.  

THE EVIDENCE

28.  I would first discuss the evidence given by Novartis HK’s witnesses, for there are more details in their evidence.  Thereafter, I would discuss the evidence given by Lee.

Wong

29.  Wong said the following in his evidence:-

(1)  Wong joined Novartis HK in 2003.  He has always been with Novartis HK’s Ophthalmology Business Unit, which presently comprises the Retina Team and the Anterior Team.  Prior to 2016, before there was an integration of Novartis HK and Alcon’s respective ophthalmology businesses, Novartis HK Ophthalmology Business Unit only had a Retina Team.  Wong is now the Head of Novartis HK’s Ophthalmology Business Unit. 

(2)  On 27 January 2016, Novartis HK’s global management made a company-wide announcement that there would be an integration of Novartis HK’s Retina Team with Alcon’s pharmaceutical ophthalmic franchise, to form a new, integrated “Ophtha Franchise” which would be under the control of Novartis.  Detailed guidance on how the integration was to be implemented was set out in an “Ophtha Implementation Workbook” (known as “Global Guidance”)  which was circulated to management in January 2016.

(3)  On 4 March 2016, Novartis HK emailed all associates informing them that the new Ophtha Franchise would be in operation on 1 April 2016.  Associates were further informed that Novartis HK’s Human Resources departments were working on a detailed plan in relation to staff transfers and would provide further details later on.

(4)  The integration process took place during the whole of 2016 with 1 January 2017 being the specified date on which all staff re-assignments and related legal matters completed and the new, combined Ophtha Franchise established.

(5)  During the early planning and implementation stage from around March to December 2016, the Alcon and the Novartis HK teams were kept separate.  There were a total of 18 positions in the two teams prior to integration.  Several roles would need to be either made hybrid (combined with existing roles)  or eliminated in line with the overall direction stated in the Global Guidance.

(6)  The Global Guidance gave guidance on reducing the number of employees in the management or supervision level to best protect and grow the business, capitalize growth drivers and prepare for future key launches.  In particular:-

(a)  The positions of the 2 Business Unit Heads (i.e. Business Unit Head of Novartis HK’s Retina Team and Business Unit Head of Alcon Team)  were combined into 1 Business Unit Head of the whole Ophthalmology Business Unit.

(b)  For managerial positions, there was an obvious overlap as Novartis HK and Alcon each had an existing Sales Manager.  In accordance with the directions given in the Global Guidance and in light of the deteriorating sales of Novartis HK’s Retina team, the Sales Manager position in Novartis HK (i.e. Chong’s position)  was eliminated.

(c)  As there was no need for multiple managerial positions in the new Ophthalmology Business Unit and especially middle-management positions, the Sales Supervisor position (i.e. Lee’s position), which was similar to Chong’s position with sales management responsibility – was also eliminated.  This was also in line with directions given in the Global Guidance to eliminate middle level managerial roles to streamline the process.

(7)  The decision to eliminate the positions of Sales Manager and Sales Supervisor were in line with the overall direction specified in the Global Guidance. 

(8)  As associate-shifts and transfers for the new Ophtha Franchise would need to be effective and completed by latest 1 January 2017, the decision to eliminate the aforesaid positions were made in around mid-2016 and the proposed new team structure was approved by regional management on 18 August 2016.

(9)  There has not been any replacement hired for or any re-opening of the two eliminated positions since.

(10)  Although Lee’s position had been eliminated by mid-2016, owing to his illness, Novartis HK did not immediately terminate his employment contract but allowed it to continue for as long as possible, so that, amongst other things, Lee could continue to have insurance coverage.  As the new Ophtha Franchise structure had to be in place by 1 January 2017, Lee’s contract was officially terminated on 23 December 2016, just before the Christmas holidays.

(11)  Lee’s performance in 2015 was unsatisfactory.

(12)  In 2015, when the Retina Team encountered intense competition, Lee had demonstrated a very defeatist attitude during team meetings, instead of attempting to find solutions or at least trying to address the challenges. Examples given by Wong including the following:-

(a)  The PFS Incident: At one team meeting where the team was introduced to a new Pre-filled Syringe (“PFS”)  for the drug Lucentis, Lee openly expressed disdain / disbelief that the PFS could be of any help with Lucentis’ sales, and only making complaints instead of attempting to work constructively to generate plans to launch the new PFS.  As a Sales Supervisor, Lee should be a role model and leader for the team, and instead of merely complaining and criticizing. Lee should have tried to come up with constructive and innovative plans for the new PFS.  This was a significant failure to demonstrate innovation and collaboration.

(b)  PDT session with Dr Liu: Another example is when Lee refused to follow up on a PDT case involving the use of combo Visudyne (a Novartis’ product)  with a competitor’s product.  (PDT is a photodynamic therapy to treat age-related macular degeneration.  PDT needs to utilize Visudyne in combination with either Lucentis or a competitor’s drug.  PDT requires the use of a laser and the procedure is usually assisted by a registered nurse, but Lee and the sales executives had also been trained to support the procedure.)  On 31 October 2015, there was a PDT session scheduled with Dr. Liu from St Paul Hospital at 3pm.  It was Lee’s duty to handle this matter.  The team’s administrative support tried to arrange a nurse to support this but confirmed with Lee that a nurse was only available at 1:30pm but not 3pm.  Lee simply replied that the time of the PDT session could not be changed and failed to take any follow-up action.  In such a situation, normally a responsible salesman should either re-schedule the PDT session or support the PDT session on his own.  The team’s administrative support then had to seek help from the product manager who managed to re-schedule the appointment with Dr. Liu to 2:30pm.  On 28 October 2015, the product manager confirmed that the nurse could set up the laser equipment at 1:30 pm and then for Lee to support the rest after the nurse setting up the laser equipment.  However, Lee then told the product manager that he would not support the PDT session himself. Lee mentioned to the product manager that he would only support the PDT session if Dr. Liu used Visudyne with Novartis’ product Lucentis, but not if it was used with the competitor’s product.  During the entire episode, Lee did not take any initiative to work with the team nor seek the opportunity to discuss the matter with Dr. Liu.  Eventually, only after the product manager followed up with Dr. Liu and confirmed that Lucentis would be used did Lee agree to support the PDT session.

(c)  The Price Reduction Incident: Lee had sought a price reduction for Lucentis for a clinic in August 2015, but did not apparently follow up with the clinic afterwards to understand their experience and difficulties with using Lucentis, and was unable to update the team on the situation at the clinic even 4 months after the price reduction.  He complained that the pricing structure from the product manager was confusing and that he was unable to understand the same, but he had not raised any questions with the product manager earlier when he assisted in placing orders at the reduced price structure.

(13)  Wong held a one-to-one meeting with Lee on 29 October 2015, where Wong told Lee that Wong would like to see Lee to have ownership of his own territory and to properly follow up with customers. 

(14)  In the 2015 Performance Review, Lee’s overall rating as stated therein is “Good Result; Unsatisfactory Behaviours”.  Lee was regarded as having been able to meet the sales targets, but his behaviours were unsatisfactory.

(15)  Lee’s rating was given in November 2015 and could not be changed after 27 November 2015.  This is supported by an internal email of Novartis dated 7 December 2015 (“the Internal Email”).[6]

(16)  On around 10 December 2015, Wong prepared a written summary of issues (“the Written Summary”)[7] for Wang to take follow-up action.  Novartis HK’s general practice in relation to associates who have been rated “unsatisfactory” is that the line managers would seek support from the Human Resources Manager to hold follow-up discussions and to offer a PIP to the associate.

(17)  At that point of time, Wong, Wang and Chong were not aware that Lee was suffering from chronic kidney disease as Lee had not disclosed this until he submitted a sick leave certificate on 14 January 2016 stating this information.  All previous medical certificates (submitted after his sick leave application and only for Human Resources’ internal record)  only mentioned “hypertension”, “proteinuria/hematuria, HT”, “HT FSGS CRF” without specifically mentioning his condition.  Even on 8 January 2016 when Lee spoke to Wang briefly, he only told Wang that he could not be “fired” as he was “heavily sick”.  Prior to that in late December 2015 or early January 2016, when Wong asked Chong about Lee’s health condition (before Lee returned to the office on 8 January 2016), Chong told Wong that Lee had refused to reveal his health condition citing his rights to patient privacy.  Having this in mind, they respected Lee’s choice and did not enquire further.

(18)  As Lee had started taking extended periods of sick leave in 2016, the matter of Lee’s PIP and/or other plans were put aside.

30.  During the cross-examination of Wong, Lee raised for the first time that the Written Summary is a forged document.  The date of the Written Summary as printed thereon is “10 Dec 2016”.  That date has been struck through by a handwritten line, and the handwritten number “2015” is on top of the deleted date.  Novartis HK’s case is that the date “10 Dec 2016” is a typo, and Novartis HK has described in its list of documents that the correct date of the Written Summary should be “10 Dec 2015”.  That has never been challenged by Lee until Lee made the point during the cross-examination of Wong.

31.  Counsel for Novartis HK has also drawn my attention to Novartis HK’s letter to the Equal Opportunities Commission dated 23 June 2017, in which Novartis HK mentioned the Written Summary (which is Appendix 7 to that letter).  In that letter, Novartis HK has said that the correct date of the Written Summary should be “10 December 2015”, and “2016” is a typo.  That letter has been disclosed by Novartis HK a long time before the commencement of the trial, and Lee has never taken any point concerning the date of the Written Summary.

32.  After Lee raising the point concerning the date of the Written Summary, counsel for Novartis HK offered that Lee might inspect the original of the Written Summary (which is a soft copy of an excel file).  The file kept in the computer could show when the document was created.  Lee said that it would be necessary to conduct the inspection.  I therefore adjourned the hearing to allow Lee to conduct the inspection.  After the adjournment, Lee told me that he did not dispute the date of the Written Summary.

33.  Accordingly, it is an undisputed fact that the correct date of the Written Summary should be “10 Dec 2015”.

34.  Lee contended that prior to 8 January 2016, he was never told that his performance was unsatisfactory.  He claimed that he had never received any complaints of poor performance by either his first or second line managers, i.e. Chong and Wong.  During the cross examination of Wong, Lee queried why no written record or complaint over his performance has been kept.  Wong’s evidence is that he had regular team meetings with all associates (including Lee)  being present, and that he had mentioned performance issues at those meetings.  This was not challenged by Lee.  Wong also said that the 2015 Performance Review and the Written Summary are written records.  In my view, Wong has provided satisfactory answers to Lee’s challenge.

35.  Wong’s evidence is supported by contemporaneous documents, cogent and straightforward.  The reliability of his evidence is unaffected after cross-examination.  I accept his evidence. 

Wang

36.  Wang said the following in her evidence:-

(1)  Wang was the Senior Human Resources Manager of Novartis HK from 1 March 2015 to 28 February 2017.  Wang is now working in another company.

(2)  Around the end of October 2015, Wang was informed by Chong and Wong that they had concerns over Lee’s behaviours.  They told Wang that they had already had several discussions with Lee since August 2015 in connection with his behaviours, but Lee had taken the view that there was no problem with his performance at all.  The problem with Lee’s behaviours raised to Wang by Wong were those mentioned by Wong in his witness statement.

(3)  The year-end performance review process in 2015 started on 16 October 2015 and was completed on 27 November 2015 when ratings on all associates were submitted by their line managers to the company’s system.  All ratings for 2015 performance were confirmed and approved at local level by 27 November 2015, and could not be changed after that date.  This is supported by the Internal Email.

(4)  The local ratings were submitted to regional and global management for calibration, which was completed on 16 December 2015.  Thereafter, Lee’s ratings were then officially released and acknowledged by his 1^st line manager (i.e. Chong)  on 22 December 2015, acknowledged by Lee on 26 December 2015, and acknowledged by his 2^nd line manager (i.e. Wong)  on 28 December 2015.  In the 2015 Performance Review, Lee received an overall rating of “Good Results; Unsatisfactory Behaviours”. 

(5)  In early December 2015, Wong informed Wang that Lee had disagreed with the feedback given to him by Chong and Wong during the year-end review.  Wang tried to schedule a lunch appointment with Lee on 9 December 2015 with a view to providing feedback to Lee.  The appointment was subsequently rescheduled to 15 December 2015. 

(6)  On or around 10 December 2015, Wong passed to Wang a copy of the Written Summary for reference and follow-up discussion with Lee.  Wang intended to refer to this document when meeting Lee, but the rescheduled appointment ultimately did not take place because from 14 December 2015 onwards, Lee started taking extended periods of sick leave.

(7)  On 13, 16 and 19 December 2015, Wang’s associate received short Whatsapp messages from Lee.  By those messages, Lee informed Wang that he was in hospital and would not be able to return to work yet, but in those messages Lee had not disclosed what condition he had.

(8)  On 8 January 2016, Lee returned to the office and submitted three medical certificates for HR’s record purpose as follows:-

(a)  14 December 2015 – “hypertension”

(b)  15 to 24 December 2015 - “proteinuria/hematuria, HT”

(c)  25 December to 7 January 2016 – “HT FSGS CRF”

(9)  Since Lee resumed work on 8 January 2016, Wang tried to take this opportunity to speak to Lee about his 2015 performance review.  It was then when Lee said “I have a big illness, you can’t fire me” but without disclosing what condition he had.  Given that he had consistently avoided answering Human Resources’ queries about his health condition, Wang did not press further. Wang told him that she was not terminating him, but asked if he wished to consider the option of resigning in light of his poor performance in 2015.  Lee then asked how much compensation he would receive if he were to resign.  Wang gave an estimate to Lee.  Lee replied that he would think it over during the weekend and reply on Monday.  The conversation was reasonably amicable and lasted 15 to 20 minutes.

(10)  On 11 January 2016, Lee did not return to the office or contact Wang. Lee did not pick up Wang’s call.

(11)  On 14 January 2016, the Human Resources department received a sick leave application from Lee by courier enclosing medical certificates for sick leave from 11 to 17 January 2016 and 14 January to 25 February 2016.  The medical certificates stated that the diagnosis was “chronic kidney disease” and “HT, chronic renal failure”.  This was the first occasion on which Lee’s specific condition had been disclosed to Novartis HK.

(12)  On 20 January 2016, Wang emailed Lee to seek more information from him on his condition, including his doctors’ detailed diagnosis, recommended treatment and expected additional period of leave so as to allow Novartis HK to evaluate the best possible options to accommodate his health condition and to meet Novartis HK’s business operation needs.  Wang received no reply from Lee.

(13)  All of Lee’s subsequent sick leave applications were approved.  Lee ended up needing to take sick leave and/or annual leave for most of 2016.

(14)  As it transpired, Wang never had the opportunity to discuss with Lee about his rating for 2015, or the possibility of implementing a PIP, as he became ill and took sick leave for most of 2016.  Events were eventually overtaken by the integration of Novartis HK and Alcon’s ophthalmology businesses, which resulted in the company deciding (in mid-2016)  to eliminate Lee’s and Chong’s positions.

(15)  As a result of the integration of Novartis HK and Alcon’s ophthalmology businesses in 2016, the positions of Sales Manager (i.e. Chong’s position)  and Sales Supervisor (i.e. Lee’s position)  were eliminated after careful consideration.

(16)  Although Lee’s position had been eliminated by mid-2016, owing to his illness, Novartis HK did not immediately terminate his employment contract but allowed the employment contract to continue for as long as possible so that, amongst other things, Lee could continue to have insurance coverage.  His contract was officially terminated on 23 December 2016 just before the Christmas holidays. 

(17)  Chong had resigned voluntarily on 12 April 2016.  There has not been any replacement hired for or any re-opening of the two eliminated positions since.

(18)  In Wang’s oral evidence, Wang also mentioned that as a result of the integration, the positions of the Head of the Business Unit of Novartis HK’s Retina Team and the Head of the Business Unit of Alcon’s Team were combined into one position, i.e. Head of the whole new Ophthalmology Business Unit.  The person originally occupying the position of the Head in the Alcon’s Team, Ms Cordelia Yu (“Yu”), has found another position in Alcon after the integration.

(19)  After the decision was made to eliminate the Sales Supervisor position, Wang wanted to speak to Lee about his position being made redundant, but had no opportunity to do so as Lee had to undergo an operation in June 2016, with sick leave extended to 18 October 2016.

(20)  In the latter half of 2016, Wang had made a number of approaches to Lee (by phone, Whatsapp and email)  to see if he was in a position to talk, both in relation to his request for an immunosuppressive drugs support plan (and which Novartis HK was happy to provide for free)  and also to inform him of the redundancy of his position.

(21)  On 19 August 2016, Wang managed to have a brief telephone conversation with Lee.  Wang offered to follow up on his condition and his request to have sponsored drug support.  Wang also updated him on the Novartis HK’s organizational structural change.

(22)  On 20 December 2016, Wang and Lee had another telephone conversation. In the conversation, Wang told Lee that Novartis HK would be prepared to provide him with a post-termination sponsored drug plan with 100% discount (i.e. free immunosuppressive drugs per his earlier request)  and a sponsored medical insurance plan.  Lee asked if there were other positions in the company open to him.  Wang mentioned that there were other positions for transfer but they were either front-line sales positions or back office positions with third party service providers which were all less favourable than his position.  On the same date, Wang’s associate forwarded the insurance transfer information to Lee.  Lee did not confirm or reject the offer of the sponsored medical insurance plan.

(23)  On 23 December 2016, Wang sent a termination notice to Lee on the ground of redundancy as a result of the integration.

(24)  Since Lee was still recovering from his illness and that he might need financial support, the Human Resources department tried to accommodate his situation as much as possible by doing the following:-

(a)  Lee was given a further top-up payment of 6 months’ base salary on top of the sponsored drug plan and the sponsored medical insurance plan.  Lee did not reject the top-up payment but did not take up the sponsored drug plan and the sponsored medical insurance plan.

(b)  During the time he was on non-paid leave (his paid sick leave was until 24 April 2016), Novartis HK continued to provide him with his travel allowance subsidy (HK$2,300 per month)  and telecom subsidy (HK$280 per month).  Those subsidies would normally be provided to staff on the field only.

(c)  Novartis HK did not deduct/offset Lee’s long service payment from the accrued benefits from Lee’s contributions to MPF.  This resulted in Lee being paid an additional sum of HK$185,400.

37.  During cross-examination of Wang, Lee queried why the company would keep no written records of complaints over his performance.  Wang said that there would be annual performance review.  As to whether there would be other written records, Wang said that in her experience, managers in Hong Kong preferred not to put critical comments in writing but would prefer to discuss these with associates face to face so as not to leave a bad written record.  Wang was not substantially challenged on this.

38.  I am of the view that Wang’s evidence is in line with the contemporaneous documents.  The reliability of her evidence has not been affected by the cross-examination in any way.  I accept her evidence. 

Lee

39.  The main plank of Lee’s case is that he had never been complained of having poor performance until 12 January 2016, when he received an email from Wang telling him that his performance did not meet the company’s requirement.  Lee is putting forward a case that Novartis HK only started to say that he had unsatisfactory working performance after knowing that he was ill.

40.  On this crucial issue, I do not accept Lee’s evidence.

(1)  In the 2015 Performance Review, Lee’s overall rating as stated therein is “Good Result; Unsatisfactory Behaviours”.  As evidenced by the Internal Email, this rating could not be changed after 27 November 2015.  Hence, the rating must be given at a time prior to 27 November 2015.

(2)  In his evidence, Lee said that on 26 December 2015, Chong sent him a whatsapp message, requesting him to acknowledge the 2015 Performance Review. Lee said that there was no previous discussion on the annual performance review during his sick leave period.  Lee said that when he was asked to acknowledge the 2015 Performance Review, he thought that everything in the annual performance review should be fine.  Without reading the annual performance review in detail, he acknowledged receipt of the same.

(3)  In the 2015 Performance Review, it is expressly stated:-

“Acknowledgment by Associate does not indicate agreement, only recognition and notification.”

(4)  Accordingly, by giving an acknowledgment, Lee acknowledged that he recognized the contents of the 2015 Performance Review.

(5)  In my view, the annual performance review is an important document which may affect Lee’s prospect in Novartis HK.  It is inherently improbable that Lee would not pay any attention to its contents before giving the acknowledgment.

(6)  It is an indisputable fact that the Written Summary was created on 10 December 2015.  At that time, Lee had not yet started taken sick leave and had not informed anyone in Novartis HK that he had a medical condition. Accordingly, the unsatisfactory performances of Lee as recorded in the Written Summary cannot be said as excuses made up by Novartis HK for the purpose of dismissing Lee after knowing Lee’s medical condition. 

(7)  Under cross-examination, counsel for Novartis HK asked Lee questions concerning the PDT session with Dr. Liu and the Price Reduction Incident.  Lee replied that these matters had never happened, and Novartis HK made up all these.  However, these matters have been clearly recorded in the Written Summary created on 10 December 2015.  For the reason set out in the subparagraph above, Novartis HK would have no reason to put in any untrue matter in the Written Summary at that time.  Lee’s denials under cross-examination cannot be true.

(8)  Wong’s and Wang’s evidence are supported by the 2015 Performance Review and the Written Summary, which are contemporaneous documents.  In view of these contemporaneous documents and the evidence given by Wong and Wang, Lee’s allegation that he had never been complained of having poor performance before 12 January 2016 cannot be true.

41.  Since I refuse to accept Lee’s evidence on the aforesaid crucial issue, I do not regard Lee as an honest and reliable witness.  Wherever there is a conflict between Lee’s evidence on the one hand and Wong’s and Wang’s evidence on the other hand, I prefer the latter.

42.  Lee submits that an episode mentioned by Novartis HK in its Notice of Response dated 27 June 2019 is untrue.  In [9(7)] of the Notice of Response, it is stated:-

“On 14 December 2015, [Lee] did come to the office despite his sick leave. [Lee] had a meeting with [Wong], who brought up his performance review again. Yet, [Lee] still did not agree with his comments.”

43.  I note that both Wong and Wang have not given evidence on the meeting on 14 December 2015, and Lee has not cross-examined them on this point.  Lee only mentioned that he had not gone to the office on 14 December 2015 in his opening submissions and final submissions.  He did not mention this in his witness statement.  Counsel for Novartis HK, while cross-examining Lee, suggested to Lee that he went to the office on 14 December 2015.  Lee denied.  This is the only evidence from Lee on the point.  However, I have concluded that Lee is not an honest and reliable witness.

44.  As to whether Lee came to the office and had a meeting with Wong on 14 December 2015, there is no reliable evidence before this court enabling me to make a factual finding on this issue.  However, whether there was a meeting between Lee and Wong in the office discussing Lee’s performance on 14 December 2015 would not have an impact on the outcome of these proceedings.  After all, it is clear that Novartis HK had concerns on Lee’s performance before knowing Lee’s medical condition.

MY FINDINGS

45.  I find that the facts are those set out in [27] above, and those mentioned in Wong’s and Wang’s evidence.

46.  My findings include the following:-

(1)  Lee’s employment was terminated on 23 December 2016.  The sole reason for the termination is that Lee’s position (i.e. Sales Supervisor)  has been eliminated in the integration of Novartis HK’s and Alcon’s ophthalmology businesses in 2016.

(2)  In the integration exercise, apart from Lee’s position, Chong’s position (i.e. Sales Manager)  was also eliminated.  Further, the positions of Head of Business Unit of Novartis HK’s Retina Team and Head of Business Unit of Alcon’s Team were combined into one position, i.e. Head of the whole new Ophthalmology Business Unit.  All the positions eliminated have not been refilled after the integration.

(3)  Chong resigned voluntarily on 12 April 2016.  Yu found another position in Alcon after the integration.

(4)  On 20 December 2016, in the telephone conversation between Wang and Lee, Wang mentioned to Lee, inter alia, that Lee might be transferred to other positions, but those positions were either front-line sales positions or back office positions with third party service providers which were all less favourable than his original position.  There has not been any further discussion between Wang and Lee on this topic.

(5)  Lee’s superiors, i.e. Chong and Wong, regarded that Lee’s performance was unsatisfactory in 2015.  They had discussed these with Lee in 2015, and Lee was aware of their concerns in 2015.

(6)  Novartis HK had concerns on Lee’s performance before knowing Lee’s medical condition.

(7)  On 8 January 2016, there was a meeting between Wang and Lee.  In that meeting, Wang mentioned the unsatisfactory performance of Lee in 2015.  Wang mentioned that Lee might consider tendering resignation as an option in view of his unsatisfactory performance in 2015.  Wang did not say that his employment would be terminated if he did not resign.

(8)  Novartis HK’s decision to terminate Lee’s employment is not related to Lee’s medical condition, but is solely due to the integration exercise in 2016.

(9)  Not only Lee’s position was eliminated in the integration exercise. Chong’s positon and Yu’s position were also eliminated.  There is no evidence showing that Chong and Yu were suffering from any disability.

(10)  The treatment given to Lee and the treatment given to Chong and Yu are the same, i.e. original positions eliminated as a result of the integration exercise in 2016.

(11)  Before terminating his employment, Wang offered other positions in Novartis HK to Lee.  However, Lee did not follow up this matter.

47.  There is no evidence before this court showing that after the integration exercise, Novartis HK could offer a position with terms similar to those of Lee’s original position, but Novartis HK has refused to make that offer to Lee because of Lee’s disability.

48.  Lee argues that his position as Sales Supervisor was not really “middle management” and that Novartis HK was using the integration as an excuse to cut his post.  The point was put to Wong and Wang during cross-examination.  It was suggested to Wong and Wang that Lee’s position (i.e. Sales Supervisor)  did not really involve management duties in that the Sales Executives did not in fact report to him but to the Sales Manager.  In response, Wong and Wang stated that as a Sales Supervisor:-

(1)  Lee was required to coach and lead the Sales Executives under him.

(2)  Lee was also required to assist the Sales Manager in discharging the Sales Manager’s duties, which might include organizing team meetings and preparing team sales data.

(3)  Comparing with Sales Executive, a Sales Supervisor would have a higher salary and different performance targets.

49.  There is nothing contradicting the answers provided by Wong and Wang. Based upon the evidence given by Wong and Wang, a Sales Supervisor is in the middle level.  There is no evidence showing that Novartis HK has used the integration as an excuse to eliminate Lee’s post.  In fact, not only Lee’s post, but some other posts have also been eliminated as a result of the integration exercise.

50.  Based upon the aforesaid findings, I hold that Lee has not been discriminated by Novartis HK in any way by reason of his disability.  Both the first limb and the second limb of Lee’s case have not been established. Accordingly, Lee’s claim must be dismissed.

PROPER RELIEFS (IF LIABILITY IS PROVED)

51.  If I were wrong in holding that Lee is not entitled to have judgment on liability and had liability been proved, I would be prepared to hear further submissions from the parties before determining what final reliefs should be given to Lee.

52.  Lee seeks the following reliefs:-

(1)  a declaration that Novartis HK has engaged in a conduct, or committed an act, that is unlawful under DDO;

(2)  an order that Novartis HK must not repeat or continue the conduct or act;

(3)  an order that Novartis HK must provide a letter of apology issued by Novartis HK under Novartis HK’ letterhead to Lee;

(4)  an order that Novartis HK must pay to Lee damages, including damages for injury to feelings, to be assessed, suffered by Lee by reason of Novartis HK’s conduct or act that is unlawful under DDO, with particulars as follows:-

(a)  Damages for Injury to Feelings in the sum of HK$100,000;

(b)  Damages for Loss of Earnings in the sum of HK$860,757:-

Lee said that he only found a new job with starting date 23 July 2018.  Hence, he has lost 19-month incomes. He said that his average monthly wages was HK$43,803 while he was working in Novartis HK (basic salary plus commissions and MPF benefits);

(5)  an order that Novartis HK must pay to Lee punitive or exemplary damages; and

(6)  interests.

53.  If liability is established, this court has jurisdiction to grant the reliefs as set out in DDO s.72, which provides:-

“(4)  …… the District Court may—

(a)  make a declaration that the respondent has engaged in conduct, or committed an act, that is unlawful under this Ordinance, and order that the respondent shall not repeat or continue such unlawful conduct or act;

(b)  order that the respondent shall perform any reasonable act or course of conduct to redress any loss or damage suffered by the claimant;

(c)  order that the respondent shall employ or re-employ the claimant;

(d)  order that the respondent shall promote the claimant;

(e)  order that the respondent shall pay to the claimant damages by way of compensation for any loss or damage suffered by reason of the respondent’s conduct or act;

(f)  order that the respondent shall pay to the claimant punitive or exemplary damages; or

(g)  make an order declaring void in whole or in part either ab initio or from such date as may be specified in the order, any contract or agreement made in contravention of this Ordinance.

……

(5)  For the avoidance of doubt, it is hereby declared that damages in respect of an unlawful act of discrimination or harassment, or an act which is unlawful under section 46, may include compensation for injury to feelings whether or not they include compensation under any other head.”

54.  A declaration is a discretionary relief.  If liability is established, there would be a judgment stating that Novartis HK has committed an unlawful act or some unlawful acts under DDO.  In these circumstances, apart from the judgment, whether there should be a declaration in the form suggested by Lee is a question which should be further considered.  In my view, it would be necessary to have further submissions from the parties before determining the question.

55.  As to whether there should be an order requiring Novartis HK not to repeat or continue the act, my provisional view is that this order would not serve any meaningful purpose, for there has not been any employer-employee relationship between Novartis HK and Lee after 23 December 2016.  The act being complained by Lee in this case is that Novartis HK has discriminated its employee, i.e. Lee, by reason of Lee’s disability.  Since the employment has come to an end on 23 December 2016, it would not be possible for Novartis HK to repeat or continue the act being complained by Lee.  However, notwithstanding my provisional view, I would leave this issue open.  If I were wrong in holding that Novartis HK is not liable to Lee, the parties may make further submissions on this issue.

56.  In respect of the order requiring the respondent to tender a written apology to the complainant (“the apology order”), this issue has been considered by the Court of Final Appeal in Ma Bik Yung v Ko Chuen[8]. In that case, Li CJ said:-

“37. As a practical matter, where the court wishes to grant remedies which include an order for an apology, the appropriate procedure would be to proceed by making in the first instance provisional orders (that is, orders nisi). The court should give the parties the opportunity to make representations, if they wish, before the provisional orders are made final (that is, before the orders nisi are made absolute). If contrary to the court’s assumption, the defendant indicates that that he is an unwilling defendant in the sense referred to above (that is, he does not feel sorry and any apology would therefore be an insincere one), the court should hear the parties and consider the submissions made, including any argument by the defendant that such an order, if made final, would infringe his guaranteed rights and freedoms. The court would then decide on the orders that should be made final. I shall turn in a moment to deal with the question whether the court should make a final order for an apology where the defendant has indicated that he is an unwilling defendant.

38.  Where the court decides not to include an order for an apology in the final orders, the court would, on the global approach, usually adjust the other orders.  Where the package of remedies provisionally ordered included not only an award of damages, but also an order for an apology and the final order omits the latter, the deficiency must be filled, unless there is good reason for not doing so. The adjustment would usually take the form of a substantial increase in the quantum of damages.  It will generally be appropriate for the court, when making the provisional orders, including the order for an apology, to state that if the final orders do not include the order for an apology, then it is likely that the quantum of damages would be substantially increased.  Whether the court should indicate at that stage the actual amount by which the damages would be increased is a matter to be considered.  See the helpful discussion in Carole J Peterson: The failure of the Hong Kong Court of Appeal to recognise and remedy disability discrimination (2000)  HKLJ Vol. 30 Part 1 p.6 esp. 20-1. Generally speaking, however, it will be preferable not to indicate the amount of likely increase at this stage.  First, the court should leave the amount of increase to be determined after hearing argument.  Secondly, indicating the amount of increase at that stage may give rise to a perception which would be undesirable that the defendant can buy his way out of making an apology.”

57.  Following the guidance given by the Court of Final Appeal in Ma Bik Yung, if liability is established, it would be necessary for this court to hear further submissions from the parties, and then consider whether an apology order should be made by applying the Ma Bik Yung case.

58.  An order to compel Novartis HK to give a good reference letter to Lee may have the effect of compelling Novartis HK to say something which Novartis HK is unwilling to say in the absence of the order. In my view, in considering whether this order should be made, the considerations relating to an apology order as set out in the above would also be relevant.

59.  In respect of damages (including damages for injury to feelings, punitive or exemplary damages), as said by the Court of Final Appeal in Ma Bik Yung, there may be a relationship between the presence or absence of an apology order and the quantum of damages.  Further, in respect of the damages for loss of earnings claimed by Lee, I note that there is a dispute between the parties as to whether Lee has adduced sufficient evidence to prove this claim. If the answer is no, in view of District Court Ordinance (“DCO”)  s 73C(5)[9] and the fact that Lee is acting in person, the court may have to consider whether Lee should be given a chance to provide further evidence on this issue.

60.  If liability is established, I am of the view that the court would need to have further submissions from the parties on all the aforesaid.

COSTS

61.  DCO s.73C(3)  provides:-

“Each party to any proceedings in the Court in the exercise of its jurisdiction under [DDO] shall bear its own costs unless the Court otherwise orders on the ground that—

(a)  the proceedings were brought maliciously or frivolously; or

(b)  there are special circumstances which warrant an award of costs.”

62.  In view of the aforesaid statutory provision, the parties have agreed that there should be no order as to costs in these proceedings in any event.  I therefore would not make any order as to costs.

DISPOSITION

63.  I dismiss Lee’s claim.

64.  There be no order as to costs in these proceedings.

65.  Lastly, it remains for me to thank the parties for the assistance provided to the court.