LAW MIU KUEN SALLY v. SUNBASE INTERNATIONAL (HOLDINGS) LTD

DCEO 7/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 7OF 2012

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JUDGMENT

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INTRODUCTION

1. The plaintiff had been in the defendant’s employ since 24 March 1997 before she was dismissed on 23 August 2010.  She was the Senior Accounts Clerk of its Finance Department, a post she had held for the last 10 years of the employment.  The plaintiff now claims for declaration and damages on the ground of disability, sex and/or family status discrimination, both in terms of the alleged unfair treatment she received during the employment and also the termination.  The defendant denies that there had ever been any discrimination and that the plaintiff was terminated because of poor work performance, rude behaviour towards colleagues and also abuse of work computer and office time for personal purposes. 

BACKGROUND

2. For the purpose of the present case, the defendant does not dispute that the plaintiff had a disability because of a traffic accident on 6 November 2007, as a result of which she suffered soft tissue contusion of left leg and sprained soft tissue of neck, shoulder and back and therefore had to take sick leave from time to time for medical and physiotherapy treatment.  There seems to be no dispute that the plaintiff had frequently turned up late for work. That, she said, was because she had to take her daughter to school and the defendant allowed her to have “flexi hours”.  On 18 August 2009, however, the defendant issued a guideline (“the Leave Guideline”)[1] to all employees reminding them of the normal working hours which were between 9 am and 5:30 pm.  The Leave Guideline also required employees to submit sick leave certificates and said that paid sick leave would only be granted if the sick leave period was not less than 4 days.  Despite the fact that the Leave Guideline was in line with the relevant provisions of the Employment Ordinance, the plaintiff argues the Leave Guideline constituted a discrimination against her, as prior to its issuance the defendant would grant sick leave to its employees without any minimum qualifying period.  She also argues that she had been treated less favourably by the defendant in that another employee Ms Wong Cheuk (an office assistant) was allowed to use accumulated annual leave to set off sick leave.  However, the plaintiff had never been given such a choice.

3. One of the plaintiff’s work duties as senior accounts clerk was to help preparing the defendant’s financial statements.  There is evidence, however, that the defendant’s financial statements for 2003 onwards had not been prepared even in 2006.  There is also no dispute that the defendant failed to file its tax returns from 2003 to 2008 which led to demands from the Inland Revenue Department and penalties.  The plaintiff’s case is that the delay was caused by the resignation of the Financial Controller in 2006 and not her fault.  The defendant’s case, however, is that the delay was attributed to her tardiness.  Not only that, she had even concealed IRD’s demands from the defendant until she was asked by the Finance Manager Mr Chan about the matter in late 2007[2].

4. On 12 September 2009, Mr Chan found that the plaintiff’s work computer contained a lot of her personal data, violating the defendant’s regulations issued less than a month before[3]. The defence case is that the decision to terminate her was made shortly after that and was intended to take effect on 31 October 2009.  The defendant says that they did not carry out the proposed termination immediately because Mr Chan wanted to have a smooth handover of the plaintiff’s work.  Unexpectedly, the termination had to be put on hold as the plaintiff submitted a pregnant certificate on 9 October 2009[4].

5. On 8 April 2010, there was a meeting attended by the Finance Manager (Mr Chan), the Human Resources Manager (Mr Leung) and the plaintiff during which the topic of the plaintiff’s resignation was raised.  However, no agreement was reached.  The parties dispute over what had actually been said during the meeting.  The plaintiff alleged that Mr Leung and Mr Chan requested her to resign due to her claim lodged in the Labour Tribunal[5], her unsatisfactory physical bodily condition and the necessity for her to take care of her baby after its birth. 

6. Between 14 May 2010 and 7 August 2010, the plaintiff took annual leave and maternity leave.  When she returned to work on 9 August 2010, she found that her work computer had been changed and that her subordinates no longer reported to her but to Mr Chan direct.  Between 12 and 20 August 2010, the plaintiff took sick leave again for Bell’s Palsy.  On 23 August 2010, she was terminated by the defendant, with full pay and benefits. 

ISSUES

7. The crux of the matter is whether the plaintiff had ever been subject to any discrimination by the defendant at all.  For the sake of convenience, the factual disputes as revealed from the pleadings can be conveniently grouped under three main topics:-

(i)   whether the Leave Guideline and the way it was implemented constituted a discrimination against the plaintiff;

(ii) during the meeting on 8 April 2010, whether Mr Leung and Mr Chan had requested the plaintiff to resign on the basis of her physical condition and her need to take care of her baby and if so, whether such request amounts to a discrimination; and

(iii)   what the defendant’s real reasons were for terminating the plaintiff and whether any of those reasons were discriminatory against the plaintiff.

THE RELEVANT LEGAL PRINCIPLES

8. Both sides agree that for the court to decide whether any direct discrimination had occurred, the test to be applied is the two-part test stated in M v Secretary for Justice[6], namely (i) whether less favourable treatment to the plaintiff had occurred; and (ii) whether it had been caused by one of the prohibited discriminatory grounds.  Both parts have to be answered in the affirmative before there can be a finding of discrimination.  As regards (i), the comparison is not one simply with another person without the relevant attribute (disability, gender or family status, as the case may be) of the complainant, but with another person not having the relevant attribute but behaving in the same way as the complainant did[7]. As regards (ii), an objective “but for” test is to be applied, so that intention or motive to discriminate was not a necessary condition of liability, although this may be relevant when determining the appropriate remedies[8]. Moreover, if an act is done for two or more reasons and one of the reasons is the prohibited discriminatory ground (whether or not it is the dominant or substantial reason for doing the act), then the act would be taken to have been done because of that ground[9].

9. The burden is on the plaintiff to prove discrimination on the balance of probabilities.  Once the court is satisfied that the plaintiff is able to show from the primary facts that inferences could be drawn from the circumstances that disclosed a possibility of discrimination, the court would look to the employer for an explanation.  If there is no reasonable or satisfactory explanation put forward, then the court would be entitled to infer discrimination as a matter of common sense. See North West Thames Regional Health Authority v Noone[10], applied in Lam Wing Lai v YT Cheung (Chingtai) Ltd[11] and Chan Choi Yin Janice v Toppan Forms (HK) Ltd[12].

10. The defendant is a corporation which can only act through human agency. There are provisions in the discrimination ordinances that anything done by a person in the course of his employment shall be treated for the purposes of those ordinances as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval[13].

CONSIDERATION

As to (i): Sick Leave Guideline

11. As can be seen from the above, Mr Lam for the plaintiff has formulated the complaint under this topic on two limbs:-

(a)  the issuance of the Leave Guideline was to cope with her increased sick leave; and

(b) its implementation amounted to a less favourable treatment in terms of set-off when compared to the case of Ms Wong Cheuk.

12. Mr Wong, counsel for the defendant, takes a pleading point that the plaintiff should not be allowed to run any argument on (a) above, as she has only pleaded (b) in her Statement of Claim.  Reliance is placed on Kwok Chin Wing v 21 Holdings Ltd & Another[14].

13. With respect, I am unable to accept the aforesaid contention of Mr Wong.  This is in view of the following paragraphs in the Statement of Claim:-

“4. On 6 November 2007, the Plaintiff met with a traffic accident. As a result of the accident, …… She needed to take more sick leave for rest, medical treatments, etc, than before.

5. Before 18 August 2009, upon presentation of sick leave certificate, the Defendant had paid full salary to all employees including the Plaintiff for sick leave taken. However, on 18 August 2009, the Defendant issued a “Leave Guideline” (“有關員工請假指引”) (“the Leave Guideline”) to the effect that no salary would be given to all employees unless he/she was granted sick leave of 4 consecutive days for which he/she would be given his/her salary (fourth-fifth).

18. By reasons of the above, the Defendant has committed disability, sex and/or family status discriminations against the Plaintiff on the following basis”

(a)   The Leave Guideline appears to be applicable to all employees.  However, the incident of Ms. Wong shows that it was in fact not the case.  The Plaintiff has reasons to infer that the Leave Guideline was issued at least to cope with the Plaintiff’s increased sick leave due to the traffic accident.  By allowing Ms. Wong (and perhaps other employees as well), but not the Plaintiff, to set off her sick leave by annual leave, the Defendant had treated the Plaintiff less favourably than the Defendant treated or would treat other employees without the Plaintiff’s disabilities, … This has constituted disability discrimination against the Plaintiff pursuant to Sections 6 and 11(2) of the Disability Discrimination Ordinance (Cap. 487).” [Emphasis supplied]

In my judgment, whilst the emphasis of the above paragraphs is on the comparison between the alleged different treatments of the plaintiff and Ms Wong Cheuk, it is also part of her complaint that the Leave Guideline was issued to cope with her increased sick leave due to the traffic accident.  In other words, the plaintiff has alleged that the issuance of the Leave Guideline was of itself discriminatory against her.

14. That said, I agree with Mr Wong that the plaintiff has failed to establish that the issuance of the Leave Guideline was of itself a direct discrimination against her.  My reasons are as follows:-

(i)   whilst Mr Leung said the perceived malingering of the plaintiff was a reason for the issuance of the Leave Guideline, it does not follow that the issuance of the Leave Guideline amounts to disability discriminatory.  This is because the Leave Guideline aimed at malingering, not disability.  There is no need for the court to decide whether the plaintiff had in fact malingered.  There is the evidence of Ms Chau, the Office Manager, which I accept, that there were other employees who seemed to have imitated the plaintiff by taking unnecessary sick leave.  As such, there was a legitimate concern for the defendant to tighten up the procedure for applying sick leave;

(ii) the terms of the Leave Guideline on its face was applicable to all employees and other than the set-off allegation the plaintiff has not pleaded the otherwise;

(iii)   the Leave Guideline introduced a scheme in compliance with the provisions of the Employment Ordinance and it cannot reasonably be argued that an employer would commit an act of discrimination by following the law; 

(iv)   simply because the defendant had in the past paid all sick leaves in full does not necessarily mean that the plaintiff had any contractual right to the same.  In fact, the plaintiff’s employment contract expressly provided that “other matters” (which would include sick leave entitlement) were to be governed by company guidelines and the Employment Ordinance[15];

(v) there are bound to be people who take more or less sick leave than the others and every employee is bound to have different extent of salary deduction as a result.  I do not see any inherent unfairness in a scheme which provides for a larger deduction in salary due to a longer absence from duty.  It cannot be the law that there should be absolute equality in this regard; and

(vi)   the plaintiff has failed to show how she had been subject to a less favourable treatment by the procedural requirements of the Leave Guideline, eg, the requirements of informing the supervisor and the reception in the morning of the day of absence and submission of the sick leave certificate afterwards.  On the other hand, the procedural requirements are in my view reasonable and fair.  Besides, there are no valid reasons to believe that the plaintiff would have any difficulties in following the procedure. 

15. As regards the allegation that the defendant’s permission to Ms Wong Cheuk to use annual leave to set-off sick leave constituted a discrimination against the plaintiff, I too agree with Mr Wong that the plaintiff has failed to make out this complaint:-

(a)  the plaintiff’s case that Ms Wong Cheuk had been offered by the defendant an option to set-off without Ms Wong asking for one is based on a piece of hearsay allegedly from Ms Wong Cheuk. However, despite a minor discrepancy between Ms Wong Cheuk and Ms Chow Man Wan as to exactly when the former had asked for set off, both of them testified that it was the former who requested to have the set-off, as opposed to her being offered by the defendant such an option.  I can see no reason to doubt the credibility of Ms Wong Cheuk and Ms Chow Man Wan in this regard.  In other words, the plaintiff is unable to prove the point on balance of probabilities;

(b) I note also that the plaintiff had neither in her complaint letter to the Human Resources Department dated 7 January 2010[16] nor her statement to the Labour Tribunal dated 5 March 2010[17] mentioned anything about her having applied to the defendant for set-off.  This is inconsistent with her statement that she had actually asked Ms Wong Chi Po of the Human Resources Department for a set-off but without success[18].  Moreover, the plaintiff strikes me as a person who would not shy from complaining if she thought that she had not been fairly treated and would take her complaint to the top management and even the court if need be.  This is in view of her aforesaid complaint letter, her subsequent meeting with the Vice-President on 30 January 2010[19] and her later complaint to the Labour Tribunal.  Therefore, the inherent probability is that if the plaintiff had in fact applied for a set-off but to no avail, there would have been some written records somewhere.  However, there were no such records.  Based on the evidence and my observation of the plaintiff’s demeanour in giving evidence in court, even before taking into account the evidence of Ms Wong Cheuk and Ms Chow Man Wan (both of them I find to be credible), it is my assessment that the plaintiff’s evidence that she had asked for a set-off is neither credible nor reliable; and

(c)  in addition, there is also the plaintiff’s admission in cross-examination that she had not applied for any set-off in 2010. This contradicts what she said in her statement but is consistent with the absence of any written record supporting her case.  I accept the plaintiff’s admission in court that she had not in fact applied for any set-off, as it is an admission against her interest.  Why would she have made that admission if it was not true?  In view of the admission, how could she maintain that the defendant had given her a less favourable treatment in relation to set-off if she had not even asked for one?  This admission of the plaintiff in my view considerably weakens her case on set-off.

16. Can the plaintiff rely on s 6(b) of Cap 487 and make out a case that the issuance of the Leave Guideline or any of its requirements or conditions amount to an indirect discrimination against her[20]? Having considered the respective submissions of Mr Lam and Mr Wong, I have come to the view that the question must be answered in the negative.  My reasons are as follows:-

(a)  as a matter of pleading, in my judgment the plaintiff has not pleaded a case of indirect discrimination, there being not a word said in the Statement of Claim (i) about the proportion of persons being unable to comply with the requirements or conditions of the Leave Guideline; (ii) as to whether requirements or conditions are justifiable or not; or (iii) whether the plaintiff was or was not able to comply with any of its requirements or conditions;

(b) as a matter of evidence, there are no valid grounds to believe that the plaintiff would have any difficulties in complying with the procedural requirements or conditions of the Leave Guideline; and

(c)  as a matter of inherent probability, regarding the minimum qualifying period for paid sick leave, the plaintiff, who was a person under a disability, would have been the one employee who was more likely to need lengthy sick leave (4 days or more) than other employees with no disability.  As such, it cannot be said that she suffered any less favourable treatment than the other employees in this regard.

17. Therefore, I conclude that the plaintiff’s complaint about the Leave Guideline and its implementation has no merits. 

As to (ii): the 8 April 2010 meeting

18. The meeting occurred after the plaintiff had lodged her complaint with the Labour Tribunal on 5 March 2010 and the making of the consent order by the Labour Tribunal dated 26 March 2010.  For avoidance of doubt, I should say that I do not draw any inference from the fact that the complaint was settled by the defendant paying the plaintiff a sum of money. Firstly, the sum paid was much less than what the plaintiff had asked for. Secondly, the settlement was made without any admission of liability. 

19. The present complaint is that Mr Leung and Mr Chan of the defendant had in that meeting requested the plaintiff to resign owing partly to her unsatisfactory physical condition and her prospective status as a mother of a new born baby[21]. The plaintiff’s evidence was that she refused to resign and told Mr Leung and Mr Chan that as she was already pregnant the defendant could not dismissed her or forced her to resign; otherwise, she would complain to the Equal Opportunities Commission and the Labour Department[22]. It is also the plaintiff’s evidence that since Mr Leung and Mr Chan had said that the defendant would give her an additional compensation if she resigned, she therefore asked for an amount equivalent to 6 months’ salary, taking into consideration that she would need three to six months to find a new job[23].

20. On the other hand, it was the evidence of Mr Leung and Mr Chan that they did not request her to resign but just offered her the option to resign with full pay and benefits up to the end of her maternity leave.  The cause for the meeting was the plaintiff telling Mr Chan that she was not happy at work.  According to them, they met the plaintiff and made the offer on the instruction of the Vice-President (Mr Lam) after the latter was informed of the plaintiff’s unhappiness, her poor performance and behavioural problems.  One rationale behind the offer was to avoid the plaintiff’s unhappiness affecting staff morale.  Both Mr Leung and Mr Chan said that the plaintiff demanded as a condition for her to resign an additional sum equivalent to 10 months’ salary, with the threat of making a complaint to the Equal Opportunities Commission if she was dismissed.

21. Having considered the evidence before me, I find as a fact that:-

(i)   the meeting on 8 April 2010 was initiated by the defendant, during which the possibility of the plaintiff resigning was raised;

(ii) the plaintiff refused to resign unless she was to be given a further monetary compensation on top of her full pay and benefits; and

(iii)   she had threatened to file a complaint to the Equal Opportunities Commission if the defendant dismissed her.

22. However, I am not satisfied that either Mr Leung or Mr Chan had requested the plaintiff to resign or that they had made an implicit threat that she would be dismissed if she refused to resign. I am also not satisfied that either of them had said or done anything which amounted to a discrimination of the plaintiff by virtue of her disability, gender or family status.  My reasons are as follows:-

(a)  I find her evidence incredible.  In cross-examination, she said that she had in fact made a complaint to the Equal Opportunities Commission and had been given a verbal advice after the meeting.  She also said that she had subsequently received a letter from the Commission saying that as she had decided not to pursue the matter, the Commission had stopped the relevant investigation.  When asked why it was that the aforesaid complaint to the Commission had not been mentioned in any of her statements, she said that she had not even mentioned that to her lawyer;

(b) given my assessment of the plaintiff as a person who would be very persistent in getting what she thought she was entitled to, I agree with Mr Wong that her evidence regarding what Mr and Mr Chan had said is surprisingly unsupported by any contemporaneous documents; and

(c)  in view of the fact that the meeting was held shortly after the proceedings in the Labour Tribunal, given their possible knowledge of the plaintiff’s persistent character [24]and by observing the way they spoken in giving evidence, I find it inherent improbable that Mr Leung and Mr Chan, both of them being educated persons with extensive work experience, would have been so unguarded and blunt in their conversation with the plaintiff and said things so insensitive towards discrimination by asking her to resign owing to her physical condition and her need to take care of the baby.

23. In short, I prefer the evidence of Mr Leung and Mr Chan that they had only offered the plaintiff an option to resign, with full pay and benefits up to the end of her maternity leave.  I find that the plaintiff has failed to prove her case under this head on balance of probabilities.  In arriving at this finding, I have taken into account the fact that the meeting occurred at a time when the defendant had allegedly already made a decision to terminate the plaintiff several months ago, the implementation of which was only put off as a result of her pregnancy[25]. I do not rule out the possibility that either Mr Chan or Mr Leung had said things to the effect that the option to resign was given to her as a “soft exit”（下台階）.  However, I do not think that there is any inconsistency or inherent improbability in that the defendant would at that stage still offer the plaintiff the option to resign.  I note that it was not the plaintiff’s case that she had at that stage been informed of the decision to terminate her.  I have also considered whether an inference could be drawn that Mr Leung and Mr Chan had threatened the plaintiff, albeit in a subtle way, from all the circumstances of the meeting.  However, in the end I am not satisfied that that is the proper inference to draw.  The meeting has to be viewed against the backdrop of the Labour Tribunal case.  The defendant’s action of initiating the meeting can be reasonably explained on the basis of the defendant’s desire to end their relationship with the plaintiff in an amicable way without any further lawsuit.  In the words of Mr Leung, the defendant wanted to “begin well and end well”（好來，好去）.  I am alive to the evidence Mr Chan that he had said to the plaintiff during the meeting things like, “you are now having a baby, your unhappiness will affect your baby”, “what is your plan of looking after one more baby?” and “any opportunities that you would stop working to look after the new born baby?”  However, I am not satisfied on balance of probabilities that those words carried any ill-meaning or coercion. 

24. Furthermore as can be seen in the discussion below, I find that it is more probable than not that the defendant’s offer arose from its concern of staff morale, the plaintiff’s performance and behaviour problems and none of those had anything to do with her disability, gender and (prospective) family status.  Thus, for the sake of argument even assuming that Mr Leung and Mr Chan had asked the plaintiff to resign, in my assessment, she would still be unable to show that she had received a less favourable treatment.  This is because in my view any employer facing with an employee performing and behaving as the plaintiff did would justifiably like him or her to leave the workforce. 

As to (iii): Reasons for termination

25. The plaintiff’s case, as pleaded in the statement of claim, is that her dismissal was made on the basis of the plaintiff’s disability, sex and family status[26].

26. The plaintiff’s case as to the reasons of her dismissal is a circumstantial one, there being no direct evidence from her in this regard.  However, I have the following observations to be about her case:-

(a)  As pointed out by Mr Wong, it is difficult to see how the dismissal can be related to the plaintiff’s pregnancy. This is because at the time of dismissal, the plaintiff had already given birth to a baby and had returned to work from her maternity leave.

(b) It is also difficult to see how the dismissal could be related to the plaintiff’s gender.

(c)  It seems, therefore, that the only viable complaints of the plaintiff are that she was dismissed because of her disability[27] and her family status as a mother with the need to take care of her young daughter and the new-born baby. 

27. On the other hand, the defendant’s case is that the plaintiff was dismissed because of the following matters:-

(a)  poor work performance as manifested in:-

(1) the delay in preparing the defendant’s financial statements;

(2) poor attitude towards co-workers;

(3) poor handling of petty cash; and

(b) abuse of work computer for personal matters. 

The burden is of course on the defendant to establish on balance of probabilities each of the aforesaid matters they relied upon and that they were the real cause for the plaintiff’s dismissal. 

28. When it comes to whether the defendant had sufficient cause to terminate the plaintiff’s employment, in my view the proper approach is to consider the cumulative weight of those matters that have been proved to the satisfaction of the court rather than to consider those matters individually.  This is also how I understand the evidence of Mr Chan is about. For example, whilst it may be that individual incidents, like the discovery of the alleged computer abuse and the insulting of Pinky Leung (a subordinate of the plaintiff) in office might have triggered off the defendant’s decision to dismiss the plaintiff, that has to be viewed against the backdrop that the defendant had allegedly not been happy with the plaintiff’s work performance.  In the end, if the court is satisfied that the defendant had legitimate grounds to dismiss the plaintiff, then it would be more difficult for an inference to be drawn that the dismissal was based on discriminatory grounds.  The stronger the legitimate grounds were, the more difficult it would be for the inference of discrimination to be drawn.  This is not to say, however, that the presence of legitimate grounds on the one hand and discrimination on the other are mutually exclusive.  Depending on the facts of each case, the latter may still be a contributory factor.  I will bear this mind when I assess the evidence. 

29. I now turn to consider the defendant’s case on the reasons of the plaintiff’s dismissal.

Delay in preparing financial statements

30. There is no dispute that the defendant had failed to file its tax returns from 2003 to 2008 and that had led to in the defendant eventually being fined[28]. Mr Chan also testified that there had even been summonses issued against the defendant and its subsidiaries and this part of his evidence has not been challenged. Before the defendant could have filed any of its yearly tax returns, it first had to have its yearly financial statements prepared and then submitted to the external auditors for auditing.  The clerical preparation of financial statements was the plaintiff’s duty as the Senior Accounts Clerk of the Finance Department.  However, it is not in dispute that the financial statements for the year 2003 were only completed in 2008 and those for 2004 were completed in 2009. 

31. The plaintiff attributed the delay to the departure of the defendant’s financial controller Mr Tang who left in 2006 without having made the decision to write off a major investment concerning the 2005 accounts[29]. Mr Wong in his written closing submissions has listed out a plethora of cogent reasons as to why the plaintiff should not be believed on this[30]. I agree with those reasons.  I find that the plaintiff is not a credible witness.  In particular, 

(a)  Mr Tang left in end of 2005 and the write-off, it is said, concerned the 2005 accounts.  There is no explanation as to why Mr Tang could not have made the decision prior to his departure.  There is also no explanation as to why the CEO Mr Wong could not make that decision then instead of putting it off until 2008;

(b) according to the plaintiff’s own witness Ms Kwong, when she joined the defendant in 2006, the data inputting of the accounts (which was computer-assisted) for the Year 2003 had not even been done.  The departure of Mr Tang in 2006 cannot explain why this was the case, especially in view of the fact that the financial statements for the Year 2003 and Year 2004 had nothing to do with the writing-off problem in 2005;

(c)  I note also that the plaintiff had her traffic accident in November 2007.  Therefore, the traffic accident could not be a reason for the delay; 

(d) although there was a period during which the plaintiff was left without any direct supervisor in the Finance Department[31] and that there might be occasions where she had to ask the CEO Mr Wong to approve finance department documents, when asked what management decision Mr Wong actually made regarding the accounts of 2003 to 2008, she was unable to name any apart from the aforesaid alleged writing-off of assets.  There is no evidence that the plaintiff had been instructed or permitted by Mr Wong or anyone not to prepare the financial statements for 2003 and onwards; 

(e)  it is difficult to see how the belated decision to write off a single item would have the effect of rending the plaintiff unable to prepare the trial balance.  Presumably, she could have prepared the trial balance and made adjustments accordingly after the decision was made.  On the other hand, the plaintiff’s statement[32], which is echoed by Ms Kwong’s evidence that there was a lot of work to be done before the accounts could be sent to the auditors and that there was a lot of catching up to do in 2008 in relation to the accounts of the previous years is, in my view, supportive of the defence case that the plaintiff had failed to do her job in the previous years;

(f)  Mr Chan noted in his 2007 appraisal of the plaintiff that she had “failed to handle year end accounts on her own initiative”[33]. As to this, the plaintiff in cross-examination alleged that she believed that appraisal was a subsequent fabrication on the basis that Mr Chan had not become her direct supervisor until 2008.  However, such allegations had not even been put to Mr Chan.   I find that the plaintiff has not been frank about her shortcomings;

(g)  given the plaintiff’s position in the Finance Department, I infer that at all material times she must have known that the defendant had not been filing any tax returns for several years.  Presumably, before the Inland Revenue Department took any actions against the defendant and its subsidiaries, there would have been warnings and the plaintiff must have been aware of those warnings.  Given the plaintiff’s position as the Senior Accounts Clerk, it would have been her responsibility to bring to the defendant’s attention those warnings and to seek instruction as to how to deal with them.  However, there is the direct evidence of Mr Chan that the plaintiff showed him two box files of IRD demand letters and summonses only upon being asked.  That part of Mr Chan’s evidence was not challenged by the defence in cross-examination.  Although, Mr Chan’s evidence was unclear as to whether the CEO Mr Wong had been aware of the existence of the two box files of IRD documents before that, I note also that the plaintiff has never put up any positive case that she had informed anyone of the defendant about the IRD demands and summonses before she showed them to Mr Chan.  It is in my view inherently improbable that the CEO Mr Wong would have allowed the situation to remain unremedied and deteriorate for so long, if he had been informed of it earlier.  Also, if the CEO knew about the IRD correspondences kept by the plaintiff, he could have told Mr Chan.  However, it is plain from Mr Chan’s evidence that he (Mr Chan) did not know about the IRD correspondences before the plaintiff showed the files to him.  The likelihood, in my view, is that the plaintiff had at least failed to appraise the CEO of the seriousness of the problem early enough, if ever.

32. Based on all the relevant evidence, whether or not the plaintiff had actually concealed the IRD correspondences from the defendant, I draw the reasonable inference that the plaintiff’s tardiness and neglect of duty was a significant contributing factor to the late preparation of the defendant’s financial statements from 2003 onwards which in turn led to the defendant being fined.  In short, I find for the defendant that the plaintiff’s work performance had been consistently unsatisfactory over a substantial period of time. 

Poor attitude towards colleagues

33. As pointed out by Mr Wong in his written submissions, there were a number of documents supporting the defence case that the plaintiff’s attitude towards her colleagues had been poor:-

(a)  her 2007 appraisal[34];

(b) her 2008 appraisal[35];

(c)  an internal memo reporting complaints against the plaintiff by Mr Chan[36];

(d) an internal memo reporting complaints against the plaintiff issued by Mr Leung[37]; and

(e)  the complaint letter by Ms Pinky Leung alleging that the plaintiff had used abusive words to her in office[38].

It has not been put to the defence witnesses that the above documents were not contemporaneous.  I accept the defence documents to the extent that there had been complaints against the plaintiff for her poor attitude towards colleagues. 

34. Moreover, having observed Ms Pinky Leung giving evidence in court, I accept that the plaintiff had used abusive words against her regarding an incident on 12 May 2010.  The plaintiff did not deny that there was an incident around that time but said that she had only used a “neutral tone” to point out what Ms Leung had done wrong that day.  I do not accept the plaintiff’s evidence on this.  Ms Leung must have a feeling strong enough that she wrote a complaint letter against the plaintiff (her immediate supervisor) to the Human Resources Department the day following. Despite the fact that Ms Leung had already left the defendant’s employ and that the incident had happened more than 5 years ago, one can still feel Ms Leung’s anguish when she recounted the incident in court.  In my view, the incident of Ms Leung, though happened in 2010, lend supports to the earlier complaints filed against the plaintiff that her attitude towards co-workers had been poor. 

35. There is also the evidence of Mr Chan who gave evidence that the plaintiff had not been polite to him.  He quoted an incident where the plaintiff dropped documents heavily on his desk and asked him to sign.  Whilst this, in my view, would be an extraordinary thing that a Senior Accounts Clerk would do to a Finance Manager, I accept Mr Chan’s evidence that it had in fact happened.  Firstly, it was not put to Mr Chan that the incident did not happen.  Secondly, this part of Mr Chan’s evidence has some lateral support from the plaintiff’s own evidence in court that she did not recognize Mr Chan as her supervisor in 2007 and asserted that she took instruction direct from the CEO.  Whether or not the plaintiff accepted that Mr Chan was her direct supervisor at the time, he was still her senior in rank.  If the plaintiff could be impolite to her senior, then it would come as no surprise that she could be rude to other colleagues as well.

36. I have taken into the account the evidence of the defence witness Ms Kwong (a former subordinate of the plaintiff) and Mr Chow (a former driver of the defendant) that the plaintiff had a good relationship with colleagues and that they were not aware of any complaints against her.  However, I do not consider that their evidence can refute the fact that there had been complaints against the plaintiff from colleagues who held a different view about her.  I have also considered the possibility that the complaints against the plaintiff might have been exaggerated.  However, I agree with Mr Wong’s submission that it is no necessary for the court to determine this.  It is because from the perspective from an employer, staff morale would also be an important consideration.  On this point, I find that the defendant’s management did have a legitimate concern that the complaints against the plaintiff might not be isolated incidents and that the continual employment of the plaintiff would not be conducive to staff morale.

Poor handling of petty cash

37. One of the duties of the plaintiff as Senior Accounts Clerk was to handle the office petty cash and to deal with employees’ claims for reimbursement.  In this regard, there are documentary records of complaints respectively prepared by Mr Chan[39] and Mr Leung[40], which is supported by the oral evidence of Ms Pinky Leung that the plaintiff had been rude to colleagues who sought reimbursement from her.  As aforesaid, there is no pleading or evidence to show that the records were other than contemporaneous.

38. The plaintiff’s witnesses, Ms Kwong and Mr Chow gave evidence that they were not aware of any complaints against the plaintiff in relation to petty cash.  Similarly, I do not think that their evidence can refute the fact that there had in fact been such complaints. 

Abuse of work computer

39. The defence case is that the plaintiff’s work computer had contained voluminous non-work related and personal data including her own stock trading record and analysis; files relating to her injuries and treatments arising from her traffic accident, personal photographs, Mark Six records and claims records of family members[41]. This, the plaintiff has accepted[42]. As such, it cannot be disputed that the plaintiff had committed a breach of the defendant’s computer guidelines[43] according to which the plaintiff was liable to be dismissed summarily.  The presence of a quantity of personal data in the plaintiff’s work computer also suggests that she had used a substantial amount of office time dealing with personal matters.  It is the evidence of Mr Chan and Ms Pinky Leung that the plaintiff had dealt with her personal investment during office hours.  Not only that, the breach was also serious as it was discovered in just less than a month’s time following the issuance of the computer guidelines. 

40. The plaintiff sought to dispute that the computer abuse was discovered on or about 12 September 2009 and sought to put forward a case that the discovery in fact occurred after the plaintiff was dismissed (on 23 August 2010) and therefore could not have been a reason for the plaintiff’s dismissal.  Having hearing submissions from both sides, I ruled that the plaintiff is not allowed to run any positive case as to when the discovery of the computer abuse came about.  This is because the plaintiff had not properly raised the issue either by her pleadings or in the subsequent discovery process.  All that was pleaded by her is that “the non-work related and personal data had been obtained by the defendant improperly” and that “the defendant is trying to make use of the non-work related and personal data to create an excuse for the dismissal of the plaintiff”[44].

41. Despite the aforesaid ruling, the burden of proof remains with the defence to satisfy the court that the discovery was made on or about 12 September 2009.  As to this, having observed Mr Chan giving evidence in court, I accept his evidence on this point.  I note also that his evidence is supported by the following documentary records:-

(a)  his memo to the Human Resources Department as to the discovery of the computer abuse[45]; and

(b) the memo from the Human Resources Department to Vice-President Lam recommending that the plaintiff be dismissed[46].

42. I note that there have been no pleadings or evidence that the aforesaid documents are other than contemporaneous.

Cause for dismissal

43. Based on the above, I come to the view that the defendant did have a strong legitimate ground to dismiss the plaintiff as a result of the cumulative weight of her aforesaid shortcomings which I find that the defendant has established.  I find also that the plaintiff has failed to prove on balance of probabilities that she was dismissed by the defendant on discriminatory grounds.  Thus, in my judgment, the plaintiff’s case should be dismissed on the ground that she has failed to discharge her burden of proof.

44. On the other hand, there is actually evidence showing that it is more likely than not that discrimination (on whatsoever grounds) was not a reason for the plaintiff’s dismissal.  This is in the form of the evidence of Mr Chan and Mr Leung, supported by the Termination Approval Form[47] prepared by the Human Resources Department, that the decision to terminate the plaintiff was made in late September 2009, with a view to take effect on 31 October 2009.  I note that when the decision was made, the defendant was yet to be informed of the plaintiff’s pregnancy and that the plaintiff had not yet contracted Bell’s Palsy[48].  I accept Mr Chan’s evidence, which I find to be reasonable, that he had recommended not to terminate the plaintiff immediately because he wanted to have a smooth handover of the plaintiff’s work.  I accept Mr Chan’s and Mr Leung’s evidence that the plan to dismiss the plaintiff was eventually put on hold because of the pregnancy of the plaintiff, the certificate of which was submitted by her on 9 October 2009.  I find that their evidence was supported by the remarks made in the Termination Approval Form.

45. I have not lost sight of the fact that the plaintiff had not been dismissed immediately after the discovery of the failure to file tax returns.  As to this, I accept the explanation given by Mr Chan that the defendant needed the plaintiff’s co-operation to help completing the outstanding financial statements as she was the person who held all the receipts.  The evidence of defence witness Ms Kwong (who worked under the plaintiff) was that everybody in the Financial Department was very busy in 2008 and 2009 dealing with the outstanding work[49]. Ms Kwong’s statement was that when she left the employ of the defendant in October 2009, the defendant had managed to complete the 2008 financial statements.  It has also to be noted that at the material time the Finance Department consisted only of just 4 to 5 people.  The post of Financial Controller had not been filled ever since the departure of Mr Tang in 2006, instead the defendant recruited Mr Chan as Finance Manager in January 2007.  In late 2007 when Mr Chan was first asked to take over the tax matters, he was still relatively new to the work of the department.  Under Mr Chan was the plaintiff.  Under the plaintiff were Ms Kwong and Ms Leung, both of them very junior.  There was therefore no one in the defendant with sufficient knowledge and experience to replace the plaintiff. Moreover, the poor performance of the plaintiff had been reflected in her 2007 and 2008 appraisals. 

46. Although the plaintiff was given bonus for the year 2007, according to Ms Chau (the Office Manager), whose evidence I accept, it was given because the defendant did not want the plaintiff to cause any trouble.  The situation was similar in 2008, as the outstanding work had not been completed then.  Ms Chau added that the plaintiff was not the only employee who got a pay rise in 2008, other employees also did.  Moreover, the plaintiff was the one who handled the salary expenses so that she would know how much pay rise the other employees got.  As aforesaid, I find as a fact that the defendant had planned to dismiss the plaintiff in September 2009.  I note also that when the defendant did not pay her the Year End Pay for 2009, she eventually took the matter to the Labour Tribunal.  In short, I find that the fact that the plaintiff had been given bonus and pay rise after the 2007 discovery does not cause me to doubt the defence case that her performance had been poor. 

47. I have not lost sight of the fact that the computer abuse, which the defendant says was the immediate cause of the decision to dismiss the plaintiff, does not appear in the Termination Approval Form[50]. In this regard, I accept the evidence of Mr Leung that he did not put that ground in black and white because according to the defendant’s regulations the breach should have resulted in her immediate dismissal, but the defendant had (on Mr Chan’s recommendation) decided to put off the dismissal until 31 October 2009.  I accept Mr Leung’s evidence that the Termination Approval Form could have been seen by junior staff in the Human Resources Department and that the defendant did not want its employees to know that the computer regulations had not been strictly executed.  I also accept Ms Chow’s evidence that the defendant did not issue any warning to the plaintiff about her abuse of work computer as the management had already decided that the plaintiff be dismissed.  The defendant, as employer, was not duty bound to issue warnings, especially when its intention was to terminate the plaintiff with full pay and benefits rather than summarily. The fact that the discovery of the the abuse of work computer was not mentioned in the plaintiff’s appraisal for 2009 is, in my view, not a matter of significance.  It can be seen from the appraisal form that its function was for the defendant’s reference when considering demotion, promotion, transfer or pay adjustment of an employee.  Why was it necessary to mention the computer abuse in the performance appraisal when the top management of the defendant had already decided to terminate her?

48. Mr Lam contended that there had been no decision to dismiss the plaintiff when she returned to work from her maternity leave on 9 August 2010.  It was submitted that the decision was only made after she has taken another long sick leave (of 7.5 working days) for the recurrence of Bell’s Palsy between 12 August and 20 August 2010 and that was the reason why the defendant did not terminate her until 23 August 2010.  I do not accept this submission:-

(a)  as aforesaid there were supporting documents showing that the decision to terminate the plaintiff was made as early as late September 2009 and there was nothing to show that the defendant had changed its mind; and

(b) I accept Ms Chow’s evidence that the plaintiff was not terminated on 9 August 2010 because at the time the pay cheque was not yet ready and that her MPF figure was not available. 

Whether the plaintiff’s dismissal a less favourable treatment

49. I have already found that the defendant did have sufficient legitimate cause to dismiss the plaintiff and that the plaintiff was not dismissed on any discriminatory grounds.  The last question for me to decide then is whether the terms on which she was dismissed were in any way less favourable to an employee behaving in the way of the plaintiff did. 

50. In this regard, I note that the plaintiff had not been summarily dismissed by the defendant.  Rather, she was dismissed with payment in lieu of notice and with full benefits.  I accept Mr Leung’s evidence that the defendant did not dismiss the plaintiff summarily, which it was entitled to, because the defendant wanted to “begin well and end well”（好來，好去）with the plaintiff who had been in its employ for so long.  I do not think that the plaintiff could have any legitimate complaint about the terms as being in any way less favourable than those which an employee behaving like her might get.  

CONCLUSION

51. The plaintiff has failed to prove her case that she had been subjected to any discrimination either in the course of her employment or in relation to her dismissal.  As such, the plaintiff’s claim against the defendant is dismissed. I do not propose to add to the length of this already lengthy judgment by dealing with the assessment of damages which I do not think is necessary.

52. As regards costs, in view of ss 73B, 73C & 73D, I make an order nisi that there be no order as to costs.