周露娜 v. 中旅貨運物流中心有限公司

DCEO 16/2019

[2023] HKDC 1115

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 16 OF 2019

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BETWEEN

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JUDGMENT

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1.  The claimant (“C”) claims that the respondent (“R”) has discriminated her as a pregnant woman by refusing to renew her employment contract and to pay her the yearly bonus she has been receiving in years, contrary to sections 8(a) and 11(2)(c) of the Sex Discrimination Ordinance Cap 480 (“the SDO”).

2.  At trial, C was the only witness for her case, while Mr 蔣波 (“Jiang”), the former General Manager of R and Ms 雷紅梅 (“Lei”), the Personnel Manager of R, gave evidence in support of R’s case.

3.  I will first set out the relevant statutory provisions. Unless otherwise specified, all sections referred to in this judgment are those in the SDO.

The statutory provisions

4.  The 2 sections C said R has breached are section 8(a) and section 11(2)(c). They respectively provide:-

“8. Discrimination against pregnant women

A person discriminates against a woman in any circumstances relevant for the purposes of any provision of Part 3 or 4 if—

(a) on the ground of her pregnancy he treats her less favourably than he treats or would treat a person who is not pregnant;”

“11. Discrimination against applicants and employees

…

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Hong Kong, to discriminate against her—

…

(c) by dismissing her, or subjecting her to any other detriment.”

5.  It is not disputed that by section 2(2)(a), a non-renewal of an employment contract upon its expiry, which is the complaint in the present case, is treated as a dismissal for the purpose of the SDO. Therefore, in this judgment I would refer to R’s refusal to renew the employment contract with C simply as a dismissal (“the Dismissal”).

6.  Section 4 is important. It provides:-

“4. Act done because of sex, etc. and for other reason

If—

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

(b) one of the reasons is—

…

(iii) a woman’s pregnancy; or

…

whether or not it is the dominant or a substantial reason,

then, for the purpose of this Ordinance, the act shall be taken to be done for the reason specified in paragraph (b).”

7.  Therefore, by virtue of section 4 and not disputed by R, so long as C establishes that her pregnancy was one of the reasons for the Dismissal and less favourable treatment, even though it was not the dominant or substantial reason, or that there was/were other reason(s) which was/were perfectly legitimate and justified, the Dismissal and less favourable treatment shall still be taken as done by reason of her pregnancy, and therefore fall foul of sections 8(a) and 11(2)(c).

8.  Regarding section 8, the parties also refer me to section 10(c), which provides:-

“10. Comparison of cases under sections 5(1), 7(1) and 8

A comparison of the cases of persons—

…

(c) who are pregnant and not pregnant under section 8,

shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

Background or basic factual matters

9.  Unless otherwise specified, the following background or basic factual matters are not disputed.

10.  C is a holder of a Master Degree from a university in the United Kingdom. She had worked in the UK and in Hong Kong for 10 years prior to being employed since September 2007 by companies within the group under the parent company 香港中旅(集團)有限公司 (“the Group”).

11.  From September 2007 until March 2011, C had been employed by two companies within the Group, and during which time she was promoted twice:-

(a) Between September 2007 to August 2009, C was employed by香港中旅協記貨倉有限公司 (“中旅協記”), initially occupying the position of行政部業務副主任. C was promoted in September 2008 to the position of行政部業務主任, and in May 2009 to the position of總經理辦公室高級經理.

(b) From September 2009 to March 2011, C switched her employment to香港中旅貨運有限公司, another company within the Group, occupying the position of 高級經理.

12.  Since April 2011, C was employed by R as its倉儲物流部高級經理under successive yearly contracts[1].

13.  At the material time, the business of R consisted of, among others, mainly operating 3 warehouses owned by related companies and also operating certain transportation and logistics services. The 3 warehouses were conveniently called物流一倉 (“Warehouse 1”), 物流二倉 (“Warehouse 2”) and物流三倉 (“Warehouse 3”). Warehouse 1 situated at No 1 Cheong Hang Road Hung Hom, Warehouse 2 at No 20 Winslow Street Hung Hom and Warehouse 3 was CTS Cargo & Logistics Centre situated on Cheong Tung Road Hung Hom. As we shall see, an important factual matter in this case was the anticipated return of Warehouse 3 to its owner.

14.  Whilst being employed by R, C received the following recognitions and appraisals:-

(a) In each of the 7 years between 2011 to 2017, C was awarded 「優秀員工獎」;

(b) In 2012, C was awarded「利潤貢獻獎」and「業績成就獎」for 2011;

(c) In the annual reviews conducted in 2012 to 2015, C was appraised by R with respectively 96, 94, 94, 94 and 93 marks out of 100 for her work performance. Since 2016, R did not continue with the previous appraisal system and did not replace it with any.

15.  From 2011 until 2016, C had been receiving from R annual year-end bonuses. There are minor differences between the figures as put forth respectively by C and R. I accept the evidence of Lei[2] that the figures put forth by C for the years 2012 to 2016 included certain allowances which should be excluded and I find that the actual amounts of such year-end bonuses were:-

(a) 2011 - HK$322,825 (as put forth by C and not disputed by R);

(b) 2012 - HK$300,000;

(c) 2013 - HK$450,000;

(d) 2014 - HK$580,000;

(e) 2015 – HK$430,000; and

(f) 2016 – HK$498,500.

16.  Regarding the appraisals mentioned in paragraph 14(c) above, Jiang, the General Manager of R from July 2016 until February 2018, in oral evidence introduced a dispute in that they were given by his predecessor Mr 苗月冬 (“Miao”) and Jiang emphasized that he personally disagreed and would not have appraised C so highly. Of course, as the then new General Manager he was entitled to his own personal assessment of R’s staff, which might or might not differ from his predecessor’s. However, as there is no evidence proffered by R that these appraisals somehow have been withdrawn or changed by R, I find that they therefore remain those of R’s for the purpose of this action.

17.  On 26 October 2016, the owner of Warehouses 1 and 2 was fined a total of HK$49,300 in the Kowloon City Magistracy under case numbers KCS 33630/2016及KCS 33631/2016 for failure to comply with building orders in respect of the canopies of Warehouse 1 and Warehouse 2. It is part of R’s case that the prosecution and the imposition of the fine were caused by the unsatisfactory handling of C over this matter. This is disputed by C. I will call this the “Unsatisfactory Handling of the Canopy Issue”.

18.  On 2 March 2017[3], R grouped its市場銷售部, 倉儲管理部, 陸路運輸部and 深港快遞部together to be managed as a single物流業務單元 (respectively “the Integration” and “the New Unit”) and appointed C as the responsible personnel for the New Unit[4] cum being at the same time the responsible personnel for 市場銷售部. In oral evidence Jiang explained what the benefits the Integration aimed to achieve were, namely but briefly and not disputed by C, that it would facilitate the provision of “through-train” logistic services which might attract “more substantial customers” and increase the overall profits for R and create synergy.

19.  I need to mention that there is a divergence in the parties’ characterization regarding this new role of C. C characterized her appointment to be the head of the New Unit as a promotion. R contended that it was not a promotion as C’s position remained that of 高級經理 and that she was only given a different role. The fact that C’s position remained the same is not disputed by C. I agree with R’s characterization, strictly speaking. That regardless, it is indisputable that C was thereby given an additional and important role as the head of the New Unit.

20.  Shortly after the Integration, C discovered that she was pregnant. As C had to explain why she could not attend a business meeting to be held in Shanghai, she informed Jiang on 21 March 2017 by a Wechat message[5] that she was pregnant, and that she was quite nervous as she was pregnant at an advanced maternal age and the doctor recommended her not to strain herself.

21.  In April 2017, the said bonus of HK$498,500 for the year 2016 (together with an allowance of HK$27,900) was paid to C.

22.  On 12 July 2017, Jiang by Wechat asked C when she would plan to take her maternity leave and was told by C that the leave should begin on 1 November. That was later changed by C to 11 November 2017, which was a Saturday.

23.  On 4 September 2017, R received a solicitors’ letter issued on behalf of the owner of Warehouse 3[6] informing R that if R yielded vacant possession of Warehouse 3 on or before 30 November 2017 (as well as fulfilling 2 other demands), the owner would waive a sum of HK$3,391,700 owed by R.

24.  On 8 and 9 November 2017, C was not feeling well and was admitted into Queen Elizabeth Hospital (“QEH”) for obstetric condition[7].

25.  On 9 November 2017 while C was still in QEH, R through Mr 李世昶 (“Li”) by Wechat message informed C that R would not renew her employment contract and that an email has been sent to her that day. The email did not say much but enclosed therewith a notice in Chinese (“the Dismissal Notice”)[8], which read:-

“                                                                       不再續約通知書

周露娜 小姐:

由於公司架構重組，業務縮減，公司決定自2018年1月1日起公司與閣下不再續簽聘用合約。

鑒於閣下目前情況，公司準予閣下2017年11月10日辦理離職前有關工作交接事宜及離職結算手續。

                                                                                          特此通知。

                                                                                                                      中旅貨運物流中心有限公司

                                                                                                                      二0一七年十一月九日”

26.  C was shocked to receive the news of the Dismissal and felt hurt and betrayed, particularly when she was suffering from obstetric condition and was about to give birth.

27.  It is common ground that R has not produced any document whether by way of internal discussion, plan, analysis, report or email and such concerning this “架構重組”. It is also common ground that this was through the Dismissal Notice that C heard about “架構重組” from R the first time.

28.  It is also common ground that R has never issued to C any written warning or complaint against or concerning any of the allegations of unsatisfactory performance now made against C. It is R’s case that an oral warning was given, which is hotly disputed by C.

29.  R refused to and did not pay C the year-end bonus for the year 2017.

30.  The work and role of C in R was taken over by Li.

31.  On 28 November 2017, C gave birth to her daughter.

32.  C began seeing a psychiatrist in Maternal and Child Health Centre since 27 February 2018. She was found to have pervasive low mood, anxiety, irritability, poor sleep, anhedonia, fatigability, poor concentration and negative cognitions believed to be precipitated by the Dismissal and childcare stress. She was diagnosed with Moderate Depressive Episode and was followed up until June 2019[9].

33.  In March 2018, R vacated Warehouse 3.

34.  C made a complaint to the Equal Opportunities Commission (“EOC”) on 29 January 2018. EOC’s effort to mediate failed. In November 2019, this action was commenced.

R’s case

35.  Broadly and briefly, R’s pleaded case is that C was dismissed because of “架構重組” and “業務縮減” and that C was not paid year-end bonus for 2017, which was a discretionary bonus, because of her unsatisfactory performance; and that neither the Dismissal nor the refusal to pay the bonus was caused to be done by any discrimination. This position was confirmed by Ms Ma, counsel for R, on Day 1 of trial.

36.  However, on Day 2 of trial, Ms Ma on behalf of R informed the court that R would also seek to rely on the “unsatisfactory performance” allegations as part of the reason for the Dismissal. It was immediately objected to by Mr To, counsel for C. Having heard submissions, I ruled against R and said reasons would be given in this judgment.

37.  The reason is plain when one reads C’s Notice of Claim (“NoC”) and R’s Notice of Response (“the NoR”).

38.  In the NoC, C’s complaint of discrimination by not paying the bonus and her complaint of discrimination by dismissal were distinctly and separately pleaded – respectively in paragraphs 7 and 8 concerning the refusal to pay bonus and in paragraphs 9 to 13 concerning the Dismissal.

39.  In the NoR, which was settled by counsel (not Ms Ma), R responded to paragraphs 7 and 8 of the NoC (concerning the refusal to pay bonus) by paragraph 5 of the NoR, thus:-

“5. 答辯人否認申索通知書第七及八段所有有關懷孕歧視的指稱。答辯人作出以下回應：

(1) 合約的第三(5)條列明答辯人公司如發給獎金及花紅，均屬賞贈性質及酌情付給，公司有權決定發給的多少或不予發給。

(2) 由於申索人於2017年的工作表現欠佳，答辯人決定不向申索人發放2017年度之花紅。有關決定與申索人懷孕一事完全無關。答辯人重複以上第2(2)段所述。

(3) 因此，答辯人沒有向申索人發放2017年度花紅一事並沒有違反《性別歧視條例》(第480章)第8(a)或11(2)(c)條或任何條例。”

40.  R then by paragraph 6 of the NoR responded to paragraphs 9 to 13 of the NoC (concerning the Dismissal), thus:-

“6. 答辯人否認申索通知書第(9)至(13)段所有有關懷孕歧視的指稱。答辯人作出以下回應：

(1) 於2017年下半年，答辯人在決定是否與現有員工續簽2018年度聘用合約時，考慮到以下事項：

(a) 答辯人的業績和利潤自2017年1月起下滑。

(b) 香港中旅社將於2018年正式收回物流三倉，答辯人的物流業務將無可避免地縮減及需要重組架構，其中物流業務單元及財務部有職位因架構重組必須予以取消。

(2) 因上述原因，答辯人決定取消物流業務單元其中三個職位(包括申索人原崗位職級)及財務部其中一個職位。故此答辯人與申索人在內的4名員工沒有續簽2018年度聘用合約。有關決定與申索人懷孕一事完全無關。

(3) 在申索人辦理離職手續時，答辯人按照《僱傭條例》，已結算並發放薪水及津貼 …

(4) 因此，答辯人不與申索人續簽2018年度聘用合約一事並沒有違反《性別歧視條例》第8(a)或11(2)(c)條或任何條例。”

41.  It is therefore plainly apparent that “架構重組” and “業務縮減” are R’s pleaded reasons for the Dismissal, and not C’s “unsatisfactory performance”, I therefore ruled as I did.

42.  Regarding “業務縮減”, it is barely explained in paragraph 6 of the NoR that it was consequential upon the formal return of Warehouse 3. Regarding R’s pleaded case of “架構重組”, no particulars were pleaded in the NoR as to what exactly that was and what it entailed.

43.  R’s case in this regard was set out in paragraph 27 of Jiang’s witness statement:-

“答辯人不予申索人續簽2018年度聘用合約及獲發2017年花紅

27. 於2017年底，總經理辦公室在決定是否與現有的合約員工(包括申索人)續簽2018年度聘用合約時，考慮到倉儲部於物流二倉及物流三倉之業務大幅倒退，再加上物流三倉在翌年年初被收回後，倉儲業務預料將會進一步縮減，答辯人為控制經營成本，有意縮減人手。我們最終決定取消物流業務單元內的三個職位(其中包括申索人之物流業務單元負責人的職級)及財務部的一個職位，詳情見附件一。此四個遭取消的職位至今仍然維持空缺，答辯人並無為任何一個職位重新聘請人手接替。同時，香港業務部的員工人數亦由2017年12月的86人減至2018年12月的77人，詳情見附件二。由此可見，香港業務部(包括答辯人在內)的確因為業務縮減而減省人手，而選擇不予申索人續約也是為了同樣目的。有關決定與申索人懷孕一事完全無關。”

44.  C contends that R’s claim that her position was left unfilled might technically be correct, but that in reality and fact the role and function she previously performed was filled by Li (which indeed is common ground). I will return to this in due course.

45.  Regarding R’s pleaded case of “unsatisfactory performance”, in paragraph 5(2) of the NoR R repeated what it averred in paragraph 2(2). In paragraph 2(2), R averred:-

“申索人於2017年的工作表現欠佳，詳情如下。蔣總經理於包括在2017年5月10日舉行的工作會議上申索人發出口頭警告。

(a) 申索人擔任倉儲物流部高級經理期間沒有做好客戶優化及吸引新客戶的工作，以致答辯人的物流業務自2017年1月起下滑。

(b) 申索人自2017年3月初起改為擔任物流業務單元及市場銷售部負責人，但沒有就銷售團隊的組建作出任何實質進展，以致答辯人的物流及銷售業務每況越下。

(c) 此外，申索人自2017年1月起經常無故缺勤、遲到或沒有做好打咭記錄，違反合約第五條、第六(2)條及規章第155頁第三(4)項、第四(1) [sic]的規定，詳情見附件一。

(d) 申索人自2017年5月起屢次請病假但沒有事先向總經理申請批准，病假後亦沒有立即補辦手續，直至2017年11月申索人開始放產假後才向答辯人以郵寄方式補交醫生紙，違反合約第五條及規章第155頁第三(4)項、第四(1)項的規定。

(e) 申索人於2017年8月至10月期間屢次使用公司電話座機打私事的長途電話，但其沒有向上級申報及支付有關費用，違反規章第211頁第八項的規定，詳情見附件二。”

These 5 matters averred to by R in sub-paragraphs (a) to (e) above shall be referred to respectively as (a) “Failure to Attract Quality and New Clients”, (b) “Failure to Build a Sales Team”, (c) “Unsatisfactory Attendance”, (d) “Failure to adhere to Leave Procedures” and (e) “Unpaid Private Calls Matter”.

46.  Though the Unsatisfactory Handling of the Canopy Issue was not expressly pleaded in the NoR as a reason for refusing to pay the annual bonus or for the Dismissal, R in evidence and at trial repeatedly delved on it. The matter was pleaded in paragraph 2(1) of the NoR, thus:-

“於2015年起申索人被委派負責處理物流二倉的簷篷問題，但由於其處理不善，問題未獲妥善解決。屋宇署於2016年9月就物流二倉的簷篷問題向物流二倉擁有人中旅協記發出兩張案件編號為KCS 33630/2016及KCS 33631/2016的傳票，最終中旅協記於2016年10月26日在九龍城裁判法院被定罪並被判罰款$49,300。”

The Unsatisfactory Handling of the Canopy Issue

47.  I think it convenient to first deal with this issue, which is a discrete one and the relevant events happened earlier in time and would form part of background particularly for evaluating the events in 2017.

48.  R’s evidence consisted of what Jiang said in paragraphs 32 to 35 of his witness statement[10]:-

“32. 於2015年5月起，屋宇署向中旅協記發出有關物流一倉及物流二倉之簷篷失修問題的警告信，當中著令中旅協記委任認可人士/註冊����建商在該兩個倉庫對簷篷進行勘測及相關工程。

33. 當時申索人被委派負責處理該物流二倉的簷篷問題，惟申索人沒有積極跟進簷篷問題處理進度。

34. 導致同年11月屋宇署再次發出警告信及2016年 9月23日向物流二倉擁有人中旅協記發出兩張案件編號為KC S 33630/2016及KC S 33631/2016的傳票。於2016年10月26日的法庭聆訊中，申索人被中旅協記委派為代表出席聆訊。最終中旅協記因沒有遵從上述屋宇署命令的要求而被定罪，並被罰款共港幣49,300元。

35. 在聆訊後，在2017年1月20日，屋宇署再次向中旅協記發出警告信，並給予28天的限期，要求中旅協記遵從上述命令，申索人作為處理簷篷問題主要負責人有著不可推卸的責任。”

Essentially, Jiang said that C was the main person responsible (主要負責人) and that C has not actively followed-up the progress.

49.  I find Jiang’s version far from being substantiated by the contemporaneous documents. The documents relating to this issue can be found at pages 729 to 857 of the Trial Bundles (“the Canopy Documents”).

50.  Two warning letters were issued in respect of the canopy of Warehouse 2 and that of Warehouse 1 respectively on 29 May 2015[11] and 10 November 2015[12]. The 2 letters mentioned the respective building orders were both issued in 2012, that certain testing report submitted in respect of the canopy of Warehouse 2 was rejected by the Building Department in 2013 and there was complete inaction thereafter, while there was complete inaction in respect of the canopy of Warehouse 1.

51.  However, it was C’s evidence[13] that since late 2011, R had set up a new company called Hundred Smooth Logistics Limited to take over the management of Warehouse 1 and Warehouse 2, which it did since then, and the two Warehouses thereafter were not managed by her. Then, it was in early 2015 that she resumed the role of managing Warehouse 1 and Warehouse 2 when Hundred Smooth Logistics Limited was liquidated/deregistered. These were not disputed by R at all. Therefore, all the delay and inaction occurred between the issuing of the building orders in 2012 until the issuance of the two warning letters in 2015 could not be blamed on C.

52.  Secondly, letters in the Canopy Documents showed that Charles M H Wong Architect & Associates Limited was engaged and started to correspond with the Building Department as well as sending various documents to C in December 2015. There was no document throwing light on what transpired between the time when the warning letter in respect of the canopy of Warehouse 2 was issued (29 May 2015) and December 2015, but there was no complaint of delay on the part of C by anyone.

53.  Thirdly, Jiang’s evidence that C was the main person responsible was completely untrue, and he well knew it.

54.  Amongst the Canopy Documents were (a) various standard form reports (來函處理單) submitted by C, which contained her reports, opinions and suggestions, and various approvals, opinion or instructions issued by “總經理室“ (of which Jiang was a member) (b) reports by the Finance Department to “總經理室”, (c) reports by C to“總經理室” which were not in the standard form, (d) emails by C to Jiang and/or Miao reporting on the matter and seeking instructions, and emails in response by them, and (e) an email sent on 18 June 2016 in which Miao agreed with the suggestion of “總經理室” that this matter had to be reported to the Shanghai Headquarters, (f) communications between C and the Architects and contractors, (g) documents showing discussions as to whether certain testing to be undertaken would lead to substantial savings in expenditures, and (f) various quotations by contractors.

55.  It is crystal clear as shown by these documents, and I find, that (a) the compliance of the building orders would involve the expenditure of millions of dollars as well as other complications and considerations, (b) the canopy issue was a matter far beyond C’s authority, (c) all the decisions were made by C’s superiors (d) C merely acted as the liaison person mainly between the top management of R and third parties like the Architects and contractors, (e) C had dutifully and diligently reported various matters to her superiors (including Jiang) and has acted according to their instructions and also had dutifully and diligently liaised between various third parties.

56.  I thus find that C was not the “the main person responsible” as erroneously alleged by Jiang.

57.  Fourthly and importantly, there was a standard form report submitted by C on 3 October 2016[14] in which she explained that a fine would likely be imposed in the coming hearing on 26 October 2016, and that she has been liaising with the contractor to bring documents to explain to the Magistrate in mitigation that steps were being taken by R to comply. C’s report was approved by “總經理室” on the same day. Considering this together with all the documents referred to above, it seems to me clear, and I find, that R had decided to handle the canopy issue according to the steps it chose even though it meant that it could not comply with the building orders in time and a fine would be imposed. I completely reject R’s allegations that it was C’s fault that had caused the prosecution and the imposition of the fine.

58.  In the premises, I find R’s such accusations against C completely untrue and baseless, being contradicted by contemporaneous documents, and indeed entirely unfair to C.

The anticipated loss of Warehouse 3; adjustments and measures taken by R and their impact on R’s profitability in 2016 to 2018; whether the general picture and allegations put forth by R substantiated

59.  The circumstances surrounding the loss of Warehouse 3, adjustments and measures taken by R and their actual impacts were clearly very pertinent matters.

60.  The case presented by R however lacks details and is simplistic - that in September 2017 R was faced with the fact that Warehouse 3 would need to be returned in 2018 which would cause a substantial reduction in turnover and profits, C however performed unsatisfactorily which caused a drop of profit in 2017, C was therefore laid off to cut costs and her position remained unfilled.

61.  In the following quoted part of his witness statement, Jiang alleged that R’s profit dropped in 2017 because of C’s poor performance while R’s profit increased in 2018 (as compared to 2017) despite the loss of Warehouse 3 when in 2018 Li performed C’s former role:-

“14. 申索人負責管理的倉儲部的業績在2017年1-2月出現明顯下降，主要原因是客户質量欠佳。…

…

20. 申索人自2017年3月調任物流業務單元負責人後，物流二倉及物流三倉的客戶優化工作未有任何實質進展，導致該年第一季度（1-4月）物流業務單元之利潤持續下降。…

…

26. 於2017年時間，答辯人之倉儲部於物流二倉及物流三倉之業務收入均較2016年銳減。物流三倉之主營業務（包括倉儲配送及公路運輸等）之收入在2017累計比2016年大幅下跌約14%；扣除成本及其他開銷項目後，其2017年稅前純利甚至較2016年減少超過30%。同時，物流二倉利潤也在2017年大跌超過港幣二百萬元，相較2016年之利潤，跌幅約有43%。

…

30 於2018年度，答辯人的倉儲部與物流業務單元繼續遵循本人於10/5/2017公司會議上所闡述並由與會同事決議的發展方向，由李先生牽頭與物流業務單元組建銷售團隊，精選並開拓新客戶和業務，以及通過精簡人手等措施，成功讓倉儲部轉危為安，在物流三倉已被收回的惡劣情況下，倉儲部2018年的利潤總計比2017年增加超過10%。

31. 由此可見，不再由申索人領導或管理的倉儲部是有足夠能力通過各個層面的措施而改善經營環境與業績的，在運營上的效益也有明顯的提升。倉儲部2018年業績的反彈也印證了申索人在任內沒有採取積極行動對倉儲部的困境作出合適的應對，在她的崗位上沒有做出實質貢獻。”

62.  Apart from these broad allegations, R did not mention at all about any changes or adjustment it had made in response to the anticipated loss of Warehouse 3, or any information relating thereto, or any analysis.

63.  All R chose to proffer were 2 pages of collated figures, each containing 3 tables, prepared specifically for this action and entitled “香港業務部合并損益快報 - 物流業務 - 經營及財務分析”[15]. The 2 pages respectively showed the figures as in December 2017 and March 2018 which listed out respectively, in relation to each warehouse, the total tonnage, profit and revenue in the month of December 2017 and March 2018, as well as, the same cumulative yearly totals of the same figures up to December 2017 as compared to those up to December 2016 and the same figures up to March 2018 as compared to those up to March 2017.

64.  There was no information whatsoever provided, not to say details, as to how Li had built the sales team, who were the new customers and what was the new business brought in by him, and how such contributed to the increase in revenue and profit in 2018.

65.  On the other hand, C’s case is that there were much more to the simplistic picture presented by R in that (a) R has been anticipating and preparing for the return of Warehouse 3 since 2016, (b) R’s profit dropped in 2016 and in 2017 because of the following circumstances and various adjustments and measures taken by R in anticipation of the loss of Warehouse 3, (c) the increase in profit in 2018 were due to other factors and did not reflect (as R alleged) on her lack of performance in 2017.

66.  C gave evidence about the following matters, which are either well substantiated by documentary evidence or which turned out were not disputed by R, or were accepted by Jiang in cross-examination, and which I find for:-

(a) The fact that Warehouse 3 would eventually be returned to its owner for re-development was known and anticipated indeed as early as 2001, in that in April 2001, Wen Wei Po has already reported that permissions have been obtained from government authorities to re-develop Warehouse 3[16]. The redevelopment of Warehouse 3 was reported again in 大公報 on 19 August 2016[17].

(b) In anticipation of the imminent return of Warehouse 3 to its owner and in January 2016, C compiled a report to the then General Manager listing out tenants who rented their premises in Warehouse 3 under long term leases[18]. 2 Notices to Quit both dated 19 January 2016[19] were issued by R to respectively 2 tenants (whose leases expired respectively in September 2018 and March 2018) demanding them to quit on 31 July 2016. These 2 tenants together rented the entire 6th to 9th floors of Warehouse 3. Another tenant renting the entire 10^th floor of Warehouse 3 either also quitted or whose lease was not renewed.

(c) The termination of the tenancies for the 6^th to 10^th floors meant a loss of revenue of HK$814,000 a month[20].

(d) In mid-July 2016 (when the previous tenant was above to move out), C was discussing the rental of the 9^th Floor of Warehouse 3 with a prospective tenant and was met with difficulties regarding the length of the term and the period of notice required for either party to terminate. C by email sought the approval from Jiang which prompted discussions by the top management (including Jiang) in a string of emails exchanged in July 2016[21]. It was agreed by the top management that the term of the new tenancies for Warehouse 3 could only be one year and not longer, renewable yearly but with a termination clause providing for early termination by 6 months’ notice or shorter. In the emails, the top management recognized that such terms would present challenge to finding new tenants and would drive the rental down from the previous rent of HK$11.20 to HK$12.80 per square foot per month to maybe HK$10 per square foot per month.

(e) Since early 2016 and per Jiang’s instruction, C had been discussing with tenants and taking measures to vacate the less valuable tenants of Warehouse 2 and move the existing valuable tenants of Warehouse 3 to Warehouse 2. As per the Answer to Interrogatories by Jiang on behalf of R, eventually, 27 tenants (30% of the original tenants of Warehouse 3) were so moved to Warehouse 2[22].

(f) In July 2017 and with some effort, C successfully persuaded a major tenant one Imperial Tobacco Limited to move from Warehouse 3 and sign a new tenancy to rent the bonded warehouse in Warehouse 2, over which incident C was praised by Jiang[23] .

(g) In 2017, R has been renovating, refurnishing and improving various parts and floors of Warehouse 2 into bonded warehouse, constant temperature warehouse and some sort of “electronic warehouse” (電子倉) in order to increase the per square foot rental income and marketability of Warehouse 2[24]. Only emails discussing them were proffered and R has not provided any details as to what actual renovation, refurnishing or improvements have been made to Warehouse 2, nor how they had increased the rental income fetched by Warehouse 2.

(h) Such expenditure spent to improve Warehouse 2 would adversely affect the profitability of R; and if such expenditures were entered into the accounts of 2017, would affect the profit position of 2017.

(i) Jiang in cross-examination accepted that R’s revenue and profit in 2016 and 2017 was negatively affected by (i) termination of leases of various premises in Warehouse 2 and Warehouse 3 before their expiry, (ii) only short term leases with a termination clause by 6 months’ or even 3 months’ notice were offered in relation to Warehouse 3 premises and such drove down the rental value and made renting them out difficult, (iii) new clients were unwilling to rent Warehouse 3 as they learnt from the news about its impending redevelopment, (iv) there were losses of rentals in the more-than-usual interims when tenants were vacated from Warehouses 2 and 3 and the valuable tenants moved from Warehouse 3 to Warehouse 2, (v) there were losses of rental in 2017 caused by the renovation or refurbishments of various parts of Warehouse 2.

(j) However, Warehouse 2 would be able to attract new tenants and to produce more revenue and profit in 2018 after it was renovated or refurnished in 2017.

67.  Based on the matters I find for in the preceding paragraph,

(a) I find, as above mentioned, that there were quite a large number of factors affecting the revenue and profit of R in 2016, 2017 and 2018; it seems to me that many of these factors were results of timely and sensible measures taken to sustain, if not also improve, the business of R. However, it was not proved by R that such factors included any fault or poor or lack of performance on the part of C;

(b) I find these factors were obviously known to R and Jiang, and R has chosen not to divulge or present facts or materials illuminating on them;

(c) The broad figures presented in “香港業務業務部合并損益快報 - 物流業務 - 經營及財務分析” or spoken to in paragraph 26 of Jiang’s witness statement should and must be understood in light of what I find in the preceding paragraphs. I find that, without any proper analysis, these broad figures are not at all probative to or indicative of the allegations now made by R;

(d) I accept C’s criticisms against R’s case that it was untruthfully simplistic, and based on selective and incomplete disclosure and/or interpretation by R;

(e) I find it not proved that the drop of profit in 2017 was caused by the poor performance of C as alleged by R;

(f) I also find it not proved that the increase in profit in 2018 was caused by Li’s leadership or handling. I so conclude by also considering particularly that Jiang in his evidence (whether in witness statement or orally) never gave any details regarding how Li had built the sales team and which new customer and what new business Li had in fact brought in in 2018.

Failure to Attract Quality and New Clients

68.  This is but a most vague criticism by R against C. R complained that C “沒有做好客戶優化及吸引新客戶的工作”.

69.  Firstly, I find “客戶優化” is a vague term. There was never any detail given in evidence or anywhere by R as to what “客戶優化” actually meant and how C failed to do so.

70.  Secondly, in paragraph 66(e) and (f) above, I found that C had acted according to Jiang’s instructions, and had been discussing with him, and had been successful in moving the more valuable customers from Warehouse 3 to Warehouse 2. Therefore, I found C had “客戶優化” in that context.

71.  Thirdly, as to “吸引新客戶”, it was never said by R clearly, or at all, as to how C as a sales person or manager of the Warehouses could “attract” new and quality customers but failed to do so. Generally, whether a certain warehouse is an attractive facility for prospective tenants would depend on a whole host of factors, such as the terms offered in terms of price and length of tenancy, the location of the warehouse, the state of the building, security considerations, the quality of services etc. There are of course specific measures to promote a warehouse facility, like placing advertisements or renovating or improving the facilities and such. There was simply no complaint of any such failures on the part of C.

72.  Fourthly, the backdrop, as I found in paragraph 66 above, was that at the time there were quite some transitions and challenges, including vacating the less valuable tenants out of Warehouse 2 and moving the more valuable tenants from Warehouse 3 to Warehouse 2, planning and actually renovating parts of Warehouse 2, and the difficulty in marketing Warehouse 3. Therefore, I take the view that much more need to be set out and proved by R (which R has not) in order to fault C for having so failed as alleged.

73.  Indeed and on the contrary, in an email from Jiang to C dated 13 June 2017, Jiang commented C that “五月份業績比四月份有明顯進步，尤其是倉庫，運輸也有新客戶進來，大家辛苦了!”[25].

74.  I find this allegation against C not proved. I also think it is an unfair criticism against C.

Failure to Build a Sales Team

75.  This is also a groundless and unfair criticism.

76.  It is common ground that C herself had no authority to employ candidates, that advertisements were placed by the Personnel Department and not by C or her department, and that ultimately it would be Jiang who would decide whether certain candidate was suitable and the salary and terms to be offered to that candidate.

77.  C’s evidence is that she had worked with Lei and the Personnel Department, she had interviewed candidates and given her comments, opinion and recommendations to Jiang and Jiang had rejected candidates because he was unwilling to offer them the packages they asked for. I find that such evidence of C is borne out by the emails and other documents at p. 945 to 965 of the Trial Bundles. C’s such evidence was also not seriously disputed by Jiang or Lei.

78.  Indeed, piecing the events chronologically, we see this. C was given the new role as the head of the New Unit in early March 2017. The above-mentioned emails and documents showed that C started to interview and recommend to Jiang candidates in May 2017 (who were rejected by Jiang). Yet and as I will allude to below, in April 2017 and without letting C know, Jiang himself employed Li as a sales personnel. I find such state of affairs reflects adversely on the genuineness of R’s such allegations against C.

79.  I firmly reject R’s such allegations against C.

Did Jiang orally warn C about her “unsatisfactory performance”?

80.  R pleaded in paragraph 2(2) of the NoR that Jiang so warned C in a working meeting held on 10 May 2017. C’s evidence was that she was never orally warned in that meeting as alleged.

81.  For the following reasons I prefer C’s evidence over that of Jiang and find that Jiang did not so warn C orally as he alleged:-

(a) Paragraph 2(2) of the NoR pleaded expressly and clearly that Jiang warned C orally over 5 matters. However, the last matter (pleaded in sub-paragraph (e)) was “申索人於2017年8月至10月期間屢次使用公司電話座機打私事的長途電話，但其沒有向上級申報及支付有關費用”. Clearly, Jiang could not have warned C in May 2017 against something that happened months later in August to October 2017. Moreover, Lei in oral evidence accepted that this Unpaid Private Calls Matter was only first complained against C after C has lodged a complaint with the EOC. Thus, Jiang could not have orally warned C about it before the Dismissal.

(b) As shown by the minutes of this meeting[26], this meeting was attended by all the department heads and top managers. The minutes did not record any warning being administered to C. I find it highly improbable that C would be so orally warned in front of everyone.

(c) In contrast with the fact that it was so clearly and unequivocally pleaded in the NoR, Jiang in paragraph 20 of his witness statement did not mention such oral warning being administered to C when he spoke about this particular meeting. Instead, he only said later in paragraph 25 very vaguely that “本人曾在工作會議上對申索人作出口頭警示。雖然會議記錄並不會記錄此些非決議的發言，但所有與會同事均有目睹。”. Moreover, contrary to what Jiang claimed in paragraph 25, the minutes actually did not record any resolutions, but recorded at length the matters discussed.

(d) As can be gathered from my discussions above over other allegations made against C by R, I find Jiang’s evidence over those matters not substantiated, if not contradicted by, the contemporary documentary evidence. His evidence I find often consisted more of assertions and presentation of his own viewpoints or conclusions than truthful facts as he best remembered them. I do not find him an honest or reliable witness.

(e) On the other hand, I was positively impressed by C as a witness. She was earnest and direct. Her evidence is well substantiated by documents. She was not at all shaken in cross-examination. I find her a truthful and reliable witness and would prefer her evidence over Jiang’s whenever they conflict.

“架構重組”, “業務縮減”and the employment of Li

82.  As mentioned in paragraph 27 above, there was no documentation or record whatsoever showing any discussion or plan concerning this alleged “架構重組”, and that it was only first mentioned in the Dismissal Notice. As also mentioned, R gave no details or particulars in its NoR as to what the “架構重組” was and entailed. Jiang also did not do so in his 2 witness statements.

83.  At the opening stage of this trial, when asked, Ms Ma, though having been given time to take instructions, was unable to categorically state what the “架構重組” was and entailed. Eventually, R stated its case as essentially what Jiang said in paragraph 27 of his witness statement that R “為控制經營成本，有意縮減人手” (see paragraph 43 above), which as I commented in the course of trial, was very much the same as dismissing C because of “業務縮減”.

84.  Mr To then stated that C’s case was that the loss of Warehouse 3 would not render C’s position of the head of the New Unit redundant or unnecessary as R continued to operate Warehouse 1 and Warehouse 2 and the other transportation and logistics services. When asked, R did not seek to dispute this (in my view, rightly, as I do not think it disputable). Ms Ma then on behalf of R stated that R’s case of “架構重組” was that Li, who occupied the position of “總監” of R, and who originally was to take up the role and function of Vice General Manager Mr 胡國慶 (“Hu”), additionally took up the role and function of the head of the New Unit in place of C after her dismissal.

85.  The evidence proffered by R about Li, however, was the scantiest. He was only most briefly mentioned in paragraphs 28 and 30 of the witness statement of Jiang. He was not even mentioned in the 3 witness statements of Lei. There were no documents whatsoever produced by R concerning Li.

86.  In view of this most belated clarification of R’s case, this court enquired whether R was in possession of documents concerning as to when and the circumstances Li was employed. R then produced 14 pages of new documents[27]. With C’s agreement, they were admitted as part of the trial documents. These documents consisted of, among others, an email sent by Jiang to Hu and文总 on 10 April 2017 with the subject “新引入人員簡历” (“the Li Email”)[28], Li’s employment contract, an Application for Employing Professionals in Hong Kong dated 28 April 2017 submitted to the Immigration Department and an employment contract employing Hu up to 31 October 2017.

87.  Relevantly, the Li Email reads:-

“胡总、文总：

香港业务部需要从外部引入专业人员来带动整体团队能力和新业务的拓展，时间也很紧迫。附件是总部面试过的一个专业人员，准备加入我们的团队。在职责上，主要负责新业务和新客户的拓展，包括要为目前仓库带来新客户，发展新的海运业务和物流业务等，按照实际业务和落地客户的速度组建团队，和现有团队不冲突。职位名称上，可以叫大客户部总监。薪酬待遇70万港元/年，试用期一年。这个人需要办理专才引入。我本周到港后与你们交流入职安排。

Jiangbo 蒋波”

88.  I note and find the following:-

(a) Li was not, as Jiang said in paragraph 28 of his witness statement, originally employed to take over the role and function of Hu (which according to Jiang’s evidence, consisted of, among others, managing personnel matters and liaising with persons who place advertisements with R). Rather and firstly, Li was employed with the main responsibilities of “新業務和新客戶的拓展，包括要為目前倉庫帶來新客戶，發展新的海運業務和物流業務等”. Secondly, Hu was employed up to 31 October 2017; and taking up Hu’s role could not have been urgent (時間也很緊迫) in April 2017. Thirdly, Hu’s salary at the time was HK$31,185 a month; while the salary of Li was substantially more at HK$58,335 a month. In view of R’s claim that it had to cut costs in view of the loss of revenue caused by the loss of Warehouse 3, I find it highly improbable that Li was hired to replace Hu only.

(b) Li’s main responsibilities, save the development of the business of transportation by sea, were the same as those given to C about a month ago as the head of the New Unit. In this regard, I do not accept Jiang’s explanation in oral evidence that Li mainly focused on developing transportation by sea as the Li Email very clearly stated that such was only part of Li’s main responsibilities.

(c) Accept C’s evidence that she was not informed at all, I find it oblique that Li was employed with the same role and function as those given to C a month ago.

(d) There was no explanation from R why Li was so employed with the same overlapping responsibility of C but without telling C. I take the view that had there been no hidden agenda, the natural and effective way was to introduce Li to C and had them work together for the business of R.

(e) The Li Email was sent on 10 April 2017. The idea of employing such a person must have been conceived and the process of finding him begun sometime before 10 April 2017.

(f) C was given the new role only a month earlier. There was no explanation from R about what caused this urgency (時間也很緊迫) that Jiang spoke about in the Li Email. There was no mention by R of any new event or circumstance giving rise to such urgency. Of all the materials and factual circumstances placed before this court, the only event or circumstance that occurred around that time that could explain this urgency was the communication by C by Wechat on 21 March 2017 informing Jiang that she was pregnant, that she was quite nervous as she was pregnant at an advanced maternal age, and that the doctor recommended her not to strain herself.

(g) By a Wechat message sent by Jiang to C on 12 July 2017[29], Jiang specifically instructed C to hold regular meetings with Li to familiarize Li with (a) all the arrangements regarding which tenants of Warehouse 2 should be persuaded to stay and which floors they would rent and move to, which tenants from Warehouse 3 should be persuade to move to Warehouse 2, and (b) the sale pitches to be made to new tenants. These matters (that Jiang instructed C to familiarize Li with) were never part of the role and function of Hu, but rather, they were those of C.

89.  Based on the matters I find in the preceding paragraph,

(a) I reject R’s case that Li was employed to perform the role and function of Hu.

(b) I accept C’s contention and find on balance of probabilities that Li was employed in earlier April 2017 with one of the purpose, if not the dominant purpose, of having him take over the role and function of C. I thus reject R’s version to the effect that Li was only asked to also take up C’s role in late 2017 when R decided to dismiss C.

(c) The monthly salary of C in 2017 was HK$27,880 and the monthly salary of Hu was HK$31,185. They total to HK$59,065, while Li’s monthly salary was HK$58,335. On those figures, I do not accept that the main, not to say only, reason for dismissing C was to cut costs due to “業務縮減”, as employing Li would only save less than a thousand dollars a month.

Discrimination against C by dismissal?

90.  I will start off with setting out the legal principles.

91.  The burden is on the claimant to prove discrimination on the balance of probabilities. However, as has been recognized in a number of cases (for instance, Haden v Leighton Contractors (Asia) Ltd[30] and Tan, Shaun Zhi Ming v Euromoney Institutional Investor (Jersey) Ltd[31] ), there is seldom direct evidence on discrimination which is usually not overt and the claimant may have to rely upon inferences based upon the primary facts.

92.  C referred this court to the case of King v Great Britain-China Centre[32], there, in the context of racial discrimination, the English Court of Appeal considered several authorities and extracted the following principles and guidance:-

“(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.

(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in.’

(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.

(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v Noone [1988] I.C.R.813, 822, ‘almost common sense.’

(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.” (at 528F–529C)

93.  The King’s case had been cited with approval in various Hong Kong cases including Yeung Chung Wai v St Paul’s Hospital[33] and the two cases mentioned in paragraph 91 above. It is not disputed by Ms Ma.

94.  Ms Ma submitted that the inference may be rebutted if the court accepts R’s reasons as genuine albeit unjustified. She referred the court to the following passage of the first instance judge cited with approval when the matter came before the English Court of Appeal in Kamlesh Bahl v The Law Society, Robert Sayer, Jane Betts[34]

“The inference may also be rebutted – and indeed this will, we suspect, be far more common – by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. Employers will often have unjustified albeit genuine reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made. Even if they are not accepted, the tribunal’s own findings of fact may identify an obvious reason for the treatment in issue, other than a discriminatory reason.” (§101)

95.  Applying those principles to the facts of this case as I find them, I am of the clear view that C’s case of discrimination by dismissing her has been made out.

96.  As I analysed and discussed above, not only do I find R’s reasons for dismissing C based on the so-called “架構重組” and “業務縮減” not made out, I am particularly unfavourably impressed by:-

(a) R’s presentation of those broad and general figures on its revenue and profitability to support its case but without divulging at all, which R well knew but kept a conspicuous silence, the various measures and adjustments R had been making in 2016 and 2017 which provided very different explanations than the simplistic picture and reasons advocated by R as to how those figures came to be.

(b) R’s less than truthful evidence surrounding Li’s employment and his intended role, and particularly the failure to disclose relevant documents which it only did in the course of trial when pressed by C and enquired by the court.

97.  I also found above that various accusations regarding C’s work performance are baseless and unfair.

98.  Based on all my findings, and particularly considering the proximity of time between C informing Jiang of her pregnancy and Jiang hiring Li, the less-than-truthful presentation of R’s case on “架構重組”, “業務縮減” and Li’s employment and role, I have no hesitation in coming to the inference, if not an express finding, that C’s pregnancy was one, if not the substantial, reason for dismissing her, regardless of whether there might be other reasons. Thus, I conclude that R is liable for discrimination against C by dismissing her due to her pregnancy.

99.  Those said, I would remark that from hearing Jiang’s evidence I accept and believe at the time he was eager to pull R through the difficult time presented by the imminent loss of Warehouse 3 and the measures he took were meant to be for the benefit of R. I have no reason to disbelieve and accept his evidence that in 2017 he took a cut in his year-end bonus so that the other staff of R could receive theirs in the usual level.

The policy of payment of annual bonuses to managers; Discrimination by refusing to pay C her annual bonus for the year 2017; other allegations of “unsatisfactory performance”

100.  As I set out in paragraph 39 above, R’s case concerning the refusal to pay the year-end bonus consisted of a two-limb contention. The first is that “花紅均屬賞贈性質及酌情付給，公司有權決定發給的多少或不予發給” and second is that C performed unsatisfactorily and therefore R as a matter of discretion decided not to pay the bonus. Thus, R was contesting against the payment of this bonus on the basis of C’s lack of legal entitlement.

101.  However and evidently, the issue before this court is whether C received a less favourable treatment because of her pregnancy. Therefore and in my view, the proper starting point is to ascertain what the usual treatment given by R to other staff of same grade as C was in relation to the payment of year-end bonus, regardless of his/her legal entitlement.

102.  In that regard, there was in fact little divergence between C’s evidence and R’s evidence as given by Jiang. C’s evidence broadly was that the department heads (she being one of them) were informed beforehand the total amount of year-end bonuses allocated to be distributed among the staff of his/her department, and as department head she would allocate the sum between the employees in her department by reference to the level or amount he or her received last year and then make appropriate adjustments (if any, and usually minor) to reflect the management’s view of his/her performance that year. In oral evidence Jiang gave evidence to similar effect and added that such practice was based on the policy of R to provide a relatively stable overall income to the staff and to promote stability, and that the minor adjustment served more the purpose of sending a message to the employee regarding his/her performance. The practice would be different or more flexible in relation to base level staff such as the security guards and drivers (which I do not need to go into). Notably, Jiang and Lei’s evidence was that the staff would not be paid the year-end bonus for the year if during that year he/she either left R’s employment or was being terminated or dismissed or if he/she retired that year. This is borne out by Answer 7 of Lei’s Answer to Interrogatories[35]. There, Lei listed all 10 employees of R (other than C) who were not paid any year-end bonus in the years 2015 to 2017. Without exception, the 10 so listed were either terminated, dismissed or retired. This is further borne out by a list of employees who had received year-end bonus for 2017[36] which showed that all the staff (save some security guards and drivers) received the year-end bonus except Miao, C, 劉凱明 (副王任) and 吳泉鋒(倉務員) who were all dismissed.

103.  In the premises, I find that (a) the practice and treatment described in the preceding paragraph was the prevailing and usual practice and treatment of R regarding the payment of year end-bonus to its staff of the same or similar grade as that of C, (b) the reasons now put forth by R for refusing to pay to C the year-end bonus were after-thoughts (contended by R based on a matter of legal entitlement) and (c) that the true and actual reason for not paying C the year-end bonus for 2017 was, consistent with and pursuant to such prevailing practice and treatment, because she was dismissed in November 2017.

104.  I therefore conclude that the refusal to pay the year-end bonus was consequential upon the Dismissal, and therefore the refusal was also discriminatory as the Dismissal was.

105.  In case I were wrong in this regard, I would have also found that all the reasons now put forth by R for the refusal to pay the year-end bonus were not made out. I have above found against R on the Unsatisfactory Handling of the Canopy Issue, the Failure to Attract Quality and New Clients and the Failure to Build a Sales Team.

106.  For the below reasons, I also find against R on Unsatisfactory Attendance, Failure to adhere to Leave Procedures and Unpaid Private Calls Matter:-

(a) Initially, it appeared that R was complaining against C for taking a lot of leave days without good reasons. It turned out that all of the 20 days 6 hours of leave, save 2 days and 3 hours, were sick leave supported by medical certificate[37]. There was also no complaint that the 2 days and 3 hours “補假” were other than leave that C was entitled to take. The focus of complaint then shifted to C not following strictly the procedures as provided by the employment contract – obtaining prior approval first or immediately.

(b) In this regard, I accept the evidence of C that (i) most of the time Jiang was stationed in the Mainland and it was inconvenient if not unrealistic to have to obtain his approval first, (ii) she invariably contacted Jiang if her leave conflicted with any scheduled business matter, (iii) the usual practice accepted by the Personnel Department was that she would show Lei the medical certificate to confirm the leave and for the purpose of calculating her salary (whether certain deductions were due) and she would wait for the next occasion when Jiang was in Hong Kong to formally submit the papers for Jiang to sign, (iv) the above had all along been accepted by R without complaint, (v) there was actually no formal or written complaint against C for not having complied strictly with the contractual procedure.

(c) Regarding R’s present complaint that C has been late or not following the strict procedures when she was not present in R’s office, I accept C’s evidence that (i) as confirmed by Lei in oral evidence, C’s attendance in previous years were rather exemplary, she seldom if at all took any sick leave, (ii) she was late on occasions in 2017 because of ailments and discomfort caused by the pregnancy, (iii) it was R’s usual procedure and policy that she would attend the Personnel Department to account for the time she was not in office (such as when she went out to meet clients), the Personnel Department would take note of those occasions and would deduct certain amounts from her salary for those unexplained occasions and certain amounts had in fact been so deducted, (iv) she had followed this practice and appropriate amounts have been deducted from her salaries for the occasions she was late because of discomfort, (v) there were occasions she met Li or Lei when she tried to rush to work and both of them showed concern to her pregnancy and indeed asked her not to rush.

(d) I find that these allegations against C by now holding her to the strict contractual procedures (when previously R did not) were thus afterthoughts. As I commented, R seems to be raising these now by way of strict legal rights rather than approaching the matter based on what was the usual and prevailing treatment and whether C was treated less favourably.

(e) I also particularly note that there was no evidence proffered by R as to what the treatment afforded to other employees in all these regards was.

(f) The Unpaid Private Calls Matter was an exceedingly trivial matter. R now claims that a total cost of HK$535.30 was so incurred for 3 months. Lei accepted that this matter was only first complaints of after C lodged a complaint of discrimination against R with the EOC.

107.  In the premises, I would also have held that the reasons put forth by R in refusing to pay the year-end bonus were all not made out, that the failure to pay C the year-end bonus was clearly a less favourable treatment and would have inferred that the refusal was based on C’s pregnancy as one of the reasons.

108.  In the result I also find that R discriminated C by refusing to pay her the year-end bonus for 2017.

RELIEF

Loss of Income

109.  C claims that had she not been discriminated her employment contract would have been renewed for another term of one year. She therefore claims as her loss of income salaries of HK$27,880 a month for 12 months totalling HK$334,560.

110.  I agree with Mr To’s submission that in paragraphs 10 and 11 of the NoR, R pleaded an all-or-nothing defence and did not take issue with the amount. Ms Ma pointed out in her submission that R had been paid in full salary up to the end of January 2018 in lieu of her maternity leave. This was not disputed by C.

111.  I therefore would award loss of income as claimed save deducting the salary for January 2018 as having been received, at HK$306,680.

Loss of bonus

112.  C claims the year-end bonus for 2017 calculated by averaging the bonuses she received in 2014 to 2016 (HK$580,000 + HK$430,000 + HK$498,500/3 = HK$502,833) as the minimum and submitted that there should be an increase of 15% to 20% to reflect C’s new position and responsibilities. R disputed that but did not put forth any figures.

113.  Based on there being no dispute that R was not performing as well financially in 2017, and my acceptance of Jiang’s evidence that he took a cut in his bonuses so that other staff could receive the same level of bonus, I find that the amount earmarked for distribution of year-end bonus in 2017 would likely be the same as that of 2016 rather than being increased. As the amount was to be shared between the staff in the same department, I accept R’s contention that an increase of 15% to 20% in C’s amount would mean a decrease in the shares of others in C’s department. As 2017 was a relatively challenging year and there is no evidence to show C had achieved noticeable results in her new role, I tend to think that more likely than not Jiang (and even C herself as department head) would not so increase C’s share at the expense of others. My view is that it is likely that C’s year-end bonus would remain at the same amount as her bonus in 2016, ie. HK$498,500.

114.  There is one further dispute between the parties. R contended that on the evidence there is this element of minor adjustment in the year-end bonus to reflect the particular performance of that employee, in this case C; and that in view of her unsatisfactory performance, there would have been an adjustment down, though minor the adjustment might have been. C disputed that. As I have found against all of R’s allegations regarding “unsatisfactory performance”, there remains but one matter – that C indisputably had taken some 20 days of sick leave and had been late more than usual.

115.  R particularly rely on Chan Choi Yin Janice v Toppan Forms (HK) Ltd[38] in which Her Honour Judge HC Wong took into account a total of 127.5 days of sick leave in calculating the amount to be awarded in a sex discrimination case in which the claimant was discriminated as an employee. However, those days of sick leave were taken into account in assessing the claimant’s loss of income by way of a sales volume commission. The judge essentially held, as a matter of what the claimant could have achieved by way of sales, that with such amount of sick leave she could not have achieved the volume of sales as she did the earlier year. The case is clearly distinguishable in that I am not here assessing what variable income C could have actually earned, but is deciding whether as a matter of discretion C’s sick leave should be taken into account.

116.  Mr To submitted that it is a matter of principle that those sick leave days should not be taken into account against C to adjust the year-end bonus downwards. He referred to and sought assistance from a number of disability discrimination cases. Without disrespect, I do not find it necessary to go into those cases at any length to accept his submission. To begin with, I accept that those 20 odd days of sick leave were taken because of C’s pregnancy. It is common knowledge that pregnant women would need to attend regular medical check-ups to ensure the health of the mother and the foetus, that there is generally a higher risk for pregnancy at an advanced maternal age (which was C’s case), and that some women do have a more difficult pregnancy that others that might require more frequent medical attention. Therefore, in my judgment, the medical attention/treatment consequential upon the pregnancy (and therefore the time taken off work for them) is part and parcel of pregnancy, the discrimination against which is provided by the relevant sections of SDO. In my judgment, to count against the pregnant woman the need for, or the time off work to receive, such medical attention/treatment and thereby afford her less favourable treatment is prima facie a discrimination in breach of section 8(a) of the SDO.

117.  I therefore take the view that adjusting C’s year-end bonus downwards merely because she had taken the sick leave for her pregnancy and late because of discomfort caused by pregnancy (while there had already been deductions of salary for the lateness) amounts to discrimination. I therefore would not accede to R’s submission to so reduce C’s year-end bonus.

118.  Thus, I would award to C year-end bonus for 2017 the amount of HK$498,500.

Damages for Injury to Feeling

119.  The broad 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[39]:-

“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.” (p 283)

120.  In Vento v Chief Constable of West Yorkshire Police[40] Lord Justice Mummery has set out three broad bands of compensation for injuries to feelings which are as follows:-

“(i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.

(ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.

(iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.”

121.  In the Court of Appeal case of 袁慧嫺 訴 南方安老事務有限公司 [41] , 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。」

122.  Mr To asked me to do as His Honour Judge Yee did in 秦秀清 訴 長鴻鋁窗裝飾工程有限公司[42] – adjusting the level of award upwards as the Vento figures and the above award were respectively given and made some 20 and 18 years ago. This court in fact agreed with HHJ Yee and applied an upward adjustment in 李國珍 v 徐培正經營東京電腦配件公司[43].

123.  Mr To referred to Chan Choi Yin Janice v Toppan Forms (HK) Ltd[44] in which damages for injury to feelings in the sum of HK$200,000 was awarded. There, the claimant was appraised poorly and demoted after her maternity leave, and because she resisted a transfer and lodged a complaint to the EOC, she was victimized and deliberately marginalized and isolated, resulting in her being shunned by her colleagues. She was further deprived of a favourable reference. The unfair treatment lasted about 2 years until her dismissal.

124.  Mr To said that R’s conduct might not be as bad as that of the employer in Chan Choi Yin Janice, but with the said upward adjustment and bearing in mind the following, an award in the sum of HK$150,000 ought to be made. The factors he advocated were:-

(a) C has been a loyal diligent employee in the Group for almost 10 years with consistent outstanding performance;

(b) The timing of the discrimination was particularly appalling – C was dismissed when she was hospitalized, just before she was about to take her maternity leave and when the baby was soon to be born. It dealt her a particularly hard blow;

(c) As a result, C suffered from depression;

(d) From 2018 to the trial, R made up reasons for her dismissal and made many baseless and (as I found) unfair accusations against her. Mr To submitted that the injury to C’s feelings thus has been continuing for these number of years.

125.  Ms Ma submitted that the present case is similar to 袁慧嫺 訴 南方安老事務有限公司in which HK$62,500 was awarded. She further submitted that R’s discrimination was a one-off event.

126.  I cannot accept Ms Ma’s submission. I agree with Mr To that in a case of discrimination by an employer, as the present case is, the proven outstanding long employment record of C should be taken into account as a significant backdrop and context to understand and measure the injury to her feelings. I also accept the other factors advocated by Mr To, especially this, that this should not be regarded as mere a one-off incident of discrimination. In my view, though a respondent should be entitled to defend a discrimination claim unhampered by, among others, putting forth the genuine reason(s) for the less favourable treatment, there is still a line, albeit maybe a fine one, between putting forth a bona fide defence and in the name of defence conjuring up baseless and unfair attacks, and attacking rather aggressively, against the already discriminated claimant. In my judgment, what R did was the latter and R’s conduct has clearly crossed that line. I thus accept Mr To’s submission that such conduct should be regarded as a continuation of the discriminatory conduct which continues to injure the feelings of C. However, I regard those injuries so caused to C were caused intermittently and not as severe as those caused to Chan Choi Yin Janice who suffered the injury almost everyday in the course of those 2 years when she went to work.

127.  Considered the matter thus, I take the view that the proper and appropriate award is HK$130,000. This amount I indicate is assessed provisionally on the basis that R will issue to C an apology and a reference letter in appropriate form and terms. If no apology or reference are to be issued by R, it could be expected that there would be a revision of this figure and/or possibly a further award of exemplary damages (per the guidelines given by the CFA in Ma Bik Yung v Ko Chuen[45] §§34 to 38).

Apology, reference letter and other relief

128.  C seeks an order of apology and the issuance of an appropriate reference letter by R. R provisionally indicated an unwillingness to issue them to C.

129.  The court has been referred to the CFA case of Ma Bik Yung v Ko Chuen and the guidance and procedures set out therein. Having discussed the matter with counsel during closing submissions, the consensus reached between the parties was that they would like to have the opportunity to study the judgment of this court first before they consider their positions and particularly for R, whether to re-visit its stance of unwillingness to issue those letters. I think their proposal reasonable.

130.  C also seeks other relief in the form of an order compelling R to set up an anti-discriminatory policy in writing and machinery to implement it and to handle complaints. In her closing submissions, C has not formulated any specific order(s) or refer to any authorities that might give guidance. Perceivably, these would involve quite some complexities. C is to consider if she continues to pursue them and address the court according to the directions given below.

Disposal

131.  In the premises, I hold that R is liable in discrimination against C as a pregnant woman by the Dismissal and the refusal to pay to her the year-end bonus for 2017. Presently, I will enter judgment against R to pay C (a) loss of income in the HK$306,680, (b) year-end bonus in the sum of HK$498,500, and (c) interest on the sum of HK$306,680 at half judgment rate from 28 February 2018 (the date she would have received the first monthly salary) to the date of this judgment, and interest on HK$498,500 from 1 April 2018 (the date she would have received the bonus) to the date of this judgment at Prime lending rate, and interest on both sums thereafter at judgment rate until full payment.

132.  I will reserve the question of the remaining reliefs to be dealt with:-

(a) C to consider her position regarding the other relief mentioned in paragraph 130 above and, if C decides to continue to pursue them, to attempt to agree with R, and whether any agreement is achieved or otherwise, report to this court in the same joint letter mentioned below;

(b) Parties should attempt to come to an agreement and report by a joint letter to this court within 42 days from today:-

(i) whether R is willing to issue an apology and a reference letter;

(ii) if R is willing, whether the parties have come to an agreement as to their terms and other matters regarding their issuance, and if an agreement on such matters is reached, enclosing a draft order, if no agreement is reached, enclosing the parties’ respective drafts and a set of proposed directions to resolve the differences;

(iii) if R is unwilling, whether there is an agreement in respect of any revision to the package of remedies, if such is agreed, enclosing a draft order; if such is not agreed, setting out parties’ respective positions and enclosing a set of draft directions to resolve the further remedies to be given to C; and

(c) upon considering the joint letter, this court will issue further directions.

133.  I will order on nisi basis that R do pay C her costs of this action, including all costs reserved, with a certificate for counsel, to be taxed if not agreed. This order nisi will become absolute within the next 21 days unless any party applies by summons to vary.

134.  Last but not least, I thank counsel on both sides for their assistance.