IP KAI SANG v. FEDERAL ELITE LTD

DCEO 8/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 8 OF 2006

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JUDGMENT

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1.  The Plaintiff Mr. Ip was employed by the Defendant as a waiter working at the Defendant’s Chinese restaurant at the Chinese Recreation Club in Causeway Bay on 1 July 2004 (“the Restaurant”). 

2.  Under the employment contract, the period of employment was 18 months renewable for a further period.  He was paid a basic salary of $8,000 a month.  He was required to work 11 hours a day with 1 day off in a week and 7 days paid leave a year. (See p. 5 to 6 of the Documents Bundle).

Undisputed Facts

3.  Mr. Ip passed the probation period of 3 months and in January 2005 the Defendant appraised his performance to be satisfactory scoring 10.5 out of 20.  The purpose of the staff appraisal report was to assess the performance of each staff during the year for the purpose of bonus payment at year end.  After the staff appraisal report, Mr. Ip duly received a share of the bonus. 

4.  On the morning of 18 May 2005, Mr. Ip injured his right wrist.  He went to consult Dr. Lau Hon Chung for treatment. Dr. Lau certified Mr. Ip to be suffering from right wrist injury and recommended 5 days sick leave from 18 May 2005 to 22 May 2005.  Mr. Ip immediately informed the Defendant’s management staff his condition by telephone.  Later that day, he submitted the medical certificate to the Defendant and applied for 5 days sick leave (p. 17 of the Documents Bundle).  The sick leave application was duly approved by the Defendant’s restaurant manager Mr. Wong Wing Yip and general manager Mr Stanley Tse (DW1 & 2).

5.  On 22 May 2005, Mr. Ip went to Dr. Lau for a follow-up consultation.  After examining him, Dr. Lau recommended a further 4 days of sick leave from 23 May to 26 May 2005 (p. 19 of the Documents Bundle).  Mr. Ip then informed the Defendant of the same.  He submitted his sick leave certificate on the next day, 23 May 2005, to the Defendant and applied for 4 further days of sick leave. 

6.  Mr. Ip returned to work on 27 May 2005.  At the end of the day at about 9.45p.m., he was told by the Defendant’s management staff that his employment would be terminated from 28 May 2005.  He was given 7 days’ wages in lieu of notice. 

7.  Mr. Ip claimed he was discriminated by the Defendant because of his right wrist injury.  He brings the claim under the Disability Discrimination Ordinance Cap. 487 (“the Ordinance”) under sections 72 (1), 6 & 11 of the Ordinance.

8.  The Defendant denied Mr. Ip’s contract of employment was terminated because of his disability.  It claimed the employment was terminated because Mr. Ip’s performance was not satisfactory in spite of repeated oral warnings given to Mr. Ip between January and April 2005.  The Defendant claimed that Mr. Ip had failed during rush hours to clear up the tables though customers were waiting at the reception, that he was found playing video games and making phone calls in the toilet during busy periods, failing to serve customers promptly, chatting to customers during busy periods and refusing to take up duties and leaving them to his colleagues.  The Defendant further claimed that Mr. Ip had fully recovered from his injury on 27 May 2005.

Issues

9.  In order to determine if Mr. Ip was dismissed because of his disability contrary to the Disability Discrimination Ordinance, the following issues have to be considered:-

(1)	Whether Mr. Ip’s performance was satisfactory before his dismissal on 27 May 2005, and whether Mr. Ip was guilty of the misconduct alleged by the Defendant;
(2)	Whether Mr. Ip had fully recovered from his wrist injury when he returned to work on 27 May 2005;
(3)	Whether Mr. Ip was dismissed due to his disability contrary to the Ordinance.

The Law

10.  Section 6:-

“Discrimination against persons with disability, etc.

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”

11.  Section 11 provides that it is unlawful to discriminate a person because of his disability:-

“(2) 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;

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

12.  Section 72 provides:-

“72. Claims under Part III or IV

(1)	A claim by or on behalf of any person (“the claimant”) that another person (“the respondent”)-
	(a) has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or IV;

may be made the subject of civil proceedings in like manner as any other claim in tort.”

Findings

Issue 1: Whether Mr. Ip’s performance was satisfactory prior to his dismissal

13.  The Plaintiff claimed that he was employed since 1 July 2004 and he had completed the 3 months probation period satisfactorily.  The appraisal report of 8 January 2005 showed that his performance met the requirements laid down by the Defendant.  Furthermore, there was no written warning during his employment from the Defendant or any record in writing kept by the Defendant showing the Plaintiff had performance problems. 

14.  Mr. Wong Wing Yip, manager of the Restaurant, admitted he did not witness Mr. Ip using the mobile phone or playing video games in the toilet during busy periods at the Restaurant.  He was told by another staff member of such behaviour involving Mr. Ip.  Mr. Tse Tak Kiu, the General Manger of the Defendant’s Restaurant, admitted he too did not personally see Mr. Ip using the mobile phone or playing video games in the toilet during busy hours.  The complaint had come from another member of staff Mr. Wong Chong Kong who alerted him to it.  Furthermore, the Defendant received no verbal or written complaints from customers.  According to Mr. Wong Wing Yip, another complaint he received was from colleagues of Mr. Ip of his slow performance.  He recalled the complaint was made before the performance appraisal in January and the complaint was not made to him but to Mr. Wong Chong Kong only.  Mr. Wong Wing Yip admitted that Mr. Wong Chong Kong was the only person who reported Mr. Ip’s alleged playing video games and making phone calls in the toilet.  He claimed Mr. Ip was warned in March 2005 against such behaviour, but he had improved after the warning.  However, at a later date, Mr. Wong Chong Kong informed him that Mr. Ip had relapsed.  He admitted that he did not check this out himself nor had he ever caught Mr. Ip in the act. 

15.  Mr. Wong Chong Kong did not give evidence at the hearing, Mr. Tse, the General Manager and the Manager Mr. Wong Wing Yip were the only witnesses called.  Whether Mr. Ip was playing video games and making telephone calls in the toilet during the Restaurant’s busy hours have not been substantiated by the person who complained to Mr. Wong Wing Yip and Mr. Tse.

16.  Mr. Wong Wing Yip alleged in Court that on 15 May 2005 when the Restaurant was busy Mr. Ip was nowhere to be found.  This evidence never appeared in either Mr. Wong Wing Yip or Mr. Tse Tak Kiu’s witness statements, neither was it put to Mr. Ip in cross-examination.  There was apparently no warning given or reference to his absence from the Restaurant without permission from the Defendant at any time.  Mr. Wong Wing Yip claimed for the first time at the hearing that because of Mr. Ip’s absence without leave on 15 May 2005, he and the management of the Defendant decided to dismiss Mr. Ip when he returned from his sick leave.

17.  If the reason for the dismissal of Mr. Ip on 27 May was his absence without leave on 15 May prior to his sick leave, it is unreasonable that it was not raised in any of the Defendant’s witness statements or in the Defence.  As this was not even put to Mr. Ip at cross-examination and the only person who had raised it for the first time was Mr. Wong Wing Yip during cross-examination, it is unsuitable to place any weight on this piece of evidence from Mr. Wong.

18.  As to the allegation that Mr. Ip was making phone calls and playing video games in the toilet during the Restaurant’s busy periods, Mr. Ip denied he had done so.  He claimed the toilet cubicles were small and smelly, and it is impossible for him to have stayed in the toilet cubicles making phone calls and playing video games.  The evidence at trial disclosed that there were 3 staff toilets shared by all male and female staff including kitchen staff and waiters at the Restaurant.  Furthermore, accusations of such behaviour came solely from Mr. Wong Chong Kong who was not called to give evidence at the hearing.  Mr. Wong Wing Yip admitted that the 3 female waitresses at the Restaurant had never laid any complaints against Mr. Ip.

19.  More importantly, Mr. Ip was given an above average staff performance appraisal in January 2005.  Had Mr. Ip been guilty of playing video games and making phone calls while the Restaurant was busy, leaving his other colleagues to wait on guests in spite of oral warnings, one would expect the Defendant to have written to Mr. Ip and warned him of the consequence of such behaviour.  Unfortunately, there were no written warnings.  Mr. Ip denied he was guilty of such conduct or that he had ever received any oral warnings before his dismissal.

20.  Having seen and heard the witnesses at the hearing, I find Mr. Ip to be an honest witness.  I accept he was never warned either orally or in writing of any misconduct or failure to perform his duties during busy periods at the Restaurant.  The Defendant has failed to successfully show Mr. Ip’s performance was unsatisfactory before 18 May 2005.  I am not satisfied the Defendant had proved Mr. Ip was guilty of the misconduct alleged. 

Issue 2: Whether Mr. Ip had fully recovered from his wrist injury when he returned to work on 27 May 2005

21.  Mr. Ip claimed that when he returned to work on 27 May 2005, he was wearing a wrist brace.  He worked a full day that day and at 9.45 p.m. when most of the guests have finished their meals, he was called into the office and told his contract was terminated with immediate effect.  Mr. Ip claimed he had received no prior warnings.  He also claimed that he had informed both the supervisor Mr. Lau and the manager Mr. Wong Wing Yip when he reported for duty on 27 May 2005 that he was advised by the doctor to avoid carrying heavy load and that he would split up the food delivery work on account of his injured wrist which had only recovered 80%.  He also claimed that the wrist brace worn by him was clearly visible because it was connected to the thumb, yet, he was never told he should remove it at work.  Mr. Ip further claimed that when he was told his contract was terminated on 27 May, he immediately asked Mr. Wong Wing Yip the reason for his dismissal, but Mr. Wong failed to give him an answer.  He asked again whether it was because his work performance or whether it was the injury to his wrist.  Again, he received no answer from Mr. Wong.  He claimed he had a good working relationship with his colleagues and he became depressed after he was dismissed from the job by the Defendant.

22.  Mr. Wong Wing Yip denied Mr. Ip had told him on 27 May 2005 his wrist was only 80% healed.  He claimed that on the day Mr. Ip reported to work, Mr. Ip told him he had completely recovered. 

23.  It is Mr. Ip’s claim that when he returned for his follow-up consultation with Dr. Lau Hon Chung on 22 May 2005, he was informed by the doctor that his employer had called the doctor’s clinic to find out about his wrist injury.  Mr. Wong Wing Yip denied he did any such thing.  Mr. Ip further claimed that when he returned with his sick leave certificate in the afternoon of 18 May 2005, Mr. Wong Wing Yip was obviously dismayed and told him the Restaurant was short of staff and had asked him if he really needed to take such a long sick leave. 

24.  I have been shown the two sick leave certificates from Dr. Lau Hon Chung (pages 16 and 18).  The 1^st document certified Mr. Ip was suffering from right wrist injury and 5 days sick leave from 18 to 22 May was recommended.  The second certificate issued on 22 May recommended Mr. Ip to take 4 days sick leave from 23 to 26 May 2005.  As there are no evidence to the contrary to show Mr. Ip was feigning his wrist injury or that he was malingering, I accept Mr. Ip was suffering from a right wrist injury that rendered him unsuitable to return to work for 9 days in May 2005.  A person suffering from a wrist injury that required 9 days sick leave is not expected to have a complete recovery after 9 days, it is understandable for Mr. Ip to have informed his employer that he could not carry heavy loads until his wrist is fully recovered.  I accept that was what happened on 27 May 2005. 

Issue 3: Whether Mr. Ip was dismissed for his disability contrary to the Ordinance

25.  Mr. Wong denied he saw Mr. Ip on 18 May when Mr. Ip returned to submit his sick leave certificate.  He claimed he was too busy working in his office and that he had approved Mr. Ip’s sick leave certificate without meeting Mr. Ip or talking to him.  According to Mr. Ip, he went to Mr. Wong’s office and explained the nature of his injury to him before submitting his sick leave certificate.  P. 17 of the bundle is a copy of Mr. Ip’s sick leave application record, Mr. Wong Wing Yip admitted he had filled in this form and written in the reason for sick leave as ‘crush injury to the right wrist (injury at home)’ he signed and dated it on 18 May 2005.  Mr. Ip had also signed it on the same day.

26.  If Mr. Wong had filled in the date, the name and his job title on this form with particulars on the sick leave certificate including the reason for the injury and signed on the form where Mr. Ip’s own signature also appeared, he must have reviewed the application and the evidence in support of the application before he signed.  He admitted that his only concern at the time was that it was not an industrial accident.  Mr. Ip denied that he had ever told Mr. Wong he was injured at home and he had no idea why Mr. Wong put that statement in.  The reason why Mr. Wong included that statement in the form was probably because he wanted to make sure Mr. Ip was not claiming he had an industrial accident at the Restaurant which Mr. Wong admitted was his primary concern at the time.  It is highly likely that his secondary concern was the staffing at the Restaurant.  It is, therefore possible that he had asked Mr. Ip if he needed to take so many days of sick leave because the Restaurant was short of staff.  No doubt, Mr. Ip’s 9 days’ sick leave must have caused the Restaurant a staffing problem at a time when it was already short of staff.  From the staff recruitment record produced, the Defendant did hire not only a replacement staff for Mr. Ip but also additional staff to work at the Restaurant during the relevant period.

27.  When Mr. Ip returned to work on 27 May 2005, the Defendant found he had not fully recovered from his wrist injury.  He informed Mr. Wong that he would not be able to carry heavy load and needed to slow down his work because his right wrist had not fully recovered.  It must be obvious to the Defendant then that Mr. Ip would not be working in his full capacity and that it would take some time before he could return to full working capacity.  I am satisfied that was the reason why the Defendant decided to terminate Mr. Ip’s employment.  The dismissal was an infringement of S. 11 of the Ordinance.

28.  In the case of Secretary for Justice & Others v. Chan Wah & Others 2000 3 HKCFAR 460 the Chief Justice held:-

“In determining whether a particular arrangement involves sex discrimination, the Court of Appeal correctly adopted the "but for" test enunciated by Lord Goff considering the Sex Discrimination Act 1975 in R v Birmingham City Council Ex parte Equal Opportunities Commission [1989] 1 AC 1155 at 1194 A - C:

There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex.  The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned … is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant have no such motive, and yet did in fact discriminate on the ground of sex.”

(p. 656 G to R)

Conclusion

29.  Comparing the treatment of Mr. Ip to other employees who did not have a wrist injury, he was unfavourably treated.  I am satisfied that but for his right wrist injury, Mr. Ip would not have been dismissed on 27 May 2005.  After he returned to work and informed his employer that his right wrist had not fully recovered and that he was seen wearing a wrist brace, the Defendant decided Mr. Ip’s contract should be terminated.  According to the Defendant’s witness, a waiter is not allowed to wear a wrist brace during work for hygienic reason.  If Mr. Ip’s wrist required the protection of a wrist band, then it would not be suitable for him to carry on waiting at tables.  The Defendant would have to put him on other duties.  I am satisfied that it was for this reason the Defendant decided if Mr. Ip could not return to work as a waiter he should be dismissed.  If the Defendant had decided to dismiss him on 15 May 2005 because he was absent without leave, it would not have waited until the evening of 27 May 2005 and he would have been told the reason for his dismissal at the time.  Even though the Defendant may not realise the act was against the provisions of the Disability Discrimination Ordinance; or that by dismissing Mr. Ip because he could not carry out the normal duties of a waiter due to his injury, the act constituted discrimination on the ground of disability, there was an infringement of the Ordinance.  I find the Defendant liable under the Ordinance for direct discrimination against the Plaintiff.     

30.  As the Plaintiff is no longer persuing the claim under indirect discrimination, the issue is no longer relevant.

Quantum

Damages for injury to feelings

31.  It was Mr. Ip’s evidence that he asked Mr. Wong Wing Yip on the night of the dismissal the reason for his dismissal.  He wanted to know if the Defendant was not satisfied with his performance or was it because of his wrist injury.  Mr. Wong refused to give him an answer.  Mr. Ip claimed he felt it was unfair for the Defendant to dismiss him because he had been discharging his duties faithfully and he valued his job and the company of his colleagues.  He also felt he was humiliated by the dismissal; as a result, he was distressed and depressed.  Because his right wrist injury had not fully recovered, in spite of efforts in looking for employment two weeks after the dismissal, he could not find a job.  He also claimed that because of the unhappy experience with the Defendant, he decided not to work as a waiter again.  In September 2005, he returned to his former profession, working as a security guard. 

32.  The Court of Appeal in Yuen Wai Han v. South Elderly Affairs Ltd. CACV 172 of 2003 held that in general cases, damages for injury to feelings in pregnancy discrimination cases should not be less than $50,000.  The Court of Appeal also applied the three broad bands of compensation identified by the Court of Appeal in the U.K. in the case of Vento v. Chief Constable of West Yorkshire Police [2003] IRLR 102.  The Court of Appeal laid down three broad bands of compensation for injury to feelings:

(a)	The top band between ₤15,000 and ₤25,000 in the most serious cases;
(b)	The middle band of between ₤5,000 to ₤15,000 for serious cases which do not merit an award in the highest band;
(c)	Awards of between ₤500 and ₤5,000 which are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence.

(para. 65 of Mummery LJ’s judgment)

33.  Mummery LJ further held in Vento v. Chief Constable of West Yorkshire:

“66. There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.

67. The decision whether or not to award aggravated damages and, if so, in what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled.

68. Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage.  In particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage.  The extent of overlap will depend on the facts of each particular case.”   

34.  In para. 53 of his judgment, Mummery LJ agreed with Smith J. in the Appeal Tribunal where she held that awards for injury to feelings are compensatory, that they should be a justifiable size and compensate fully without punishing the tortfeasor.  That feeling of indignation at the tortfeasor’s conduct should not be allowed to inflate the award.  Smith J. further held that the awards should not be too low for it would diminish the respect for the policy of the anti-discrimination legislation nor should it be excessive.

35.  In my assessment of the damages for injury to feelings, I remind myself of the criteria set out in Smith J’s judgment and the judgement of Mummery LJ.  Mr. Ip was an employee of the Defendant for approximately 10 months.  He was aged 22½ at the time of his dismissal and he had prior experience working as a waiter at the Aviation Club.  After that, he had worked as a security guard in the airport for a couple of years.  Against this background, Mr. Ip’s employment with the Defendant cannot be considered as a long one.  Furthermore, even though he had worked as a security guard a few months after he was dismissed, he has now returned to full time study.  I hope this experience, albeit unpleasant, has not turned him off completely in persuing a career in the hospitality industry.  It is to his credit that he decided to return to full time study and that he is exploring opportunities in different fields. 

36.  On the other hand, Mr. Ip felt justifiably aggrieved and his feelings injured.  His dismissal was unexpected and unfair.  After taking 9 days of sick leave he had returned to work in spite of his right wrist not having completely healed, yet his contract was terminated by the Defendant and he was not even given an explanation for his dismissal.  Taking these matters into account and also taking into account the monthly income of Mr. Ip at the time, I assess the appropriate compensation is $50,000.

Loss of income

37.  The Plaintiff claimed a loss of income of $44,544.53 for the period between 28 May and 31 December 2005.  Mr. Ip would have continued to work until the completion of his contract on 31 December 2005 but for his dismissal on 27 May 2005.  I accept that he should be compensated for the period that he was not allowed to carry on with his contract until the end of the contract period.  The loss of income between 28 May 2005 and 31 December 2005 was $57,032.  As Mr. Ip was able to seek employment in the security field in the latter part of 2005 and his total income during the relevant period was $10,620.80, his loss is the deduction of that sum plus the 7 days’ wages in lieu of notice at $1,866.67.  The loss was $44,544.53. 

38.  I am satisfied the Plaintiff’s loss of income is $44,544.53 and I hold he is entitled to recover this sum. 

Summary

40.  Interests on the loss of income from the date of writ to the date of judgment at half judgment rate and thereafter at judgment rate.

Costs

41.  Costs nisi to the Plaintiff to be taxed if not agreed.  The order will be made absolute should there be no application on costs within 14 days hereof.