【本報訊】酒樓男侍應聲稱在協助搬運坐輪椅茶客進入酒樓時扭傷左邊身，導致身體有百分之一傷殘，事後只能用右手搬重物，他指稱因此遭酒樓經理「黑面」對待，又被東主在茶客面前直斥：「唔使你做﹗」侍應最終遭解僱，他認為酒樓有殘疾歧視之嫌，透過平等機會委員會入稟向酒樓索償約十萬元，案件昨於區院開審
門有13級梯 助輪椅客時受傷
原告簡志成，被告彩龍船（麗城）酒家有限公司。原告昨日供稱，○七年四月十八日起在被告位於荃威花園的彩龍船火鍋海鮮酒家工作，該店門口有十三級樓梯，遇上要坐輪椅茶客，每天來回約12至30次，需由數名侍應合力把茶客抬上去，原告上班第四天，便在搬運坐輪椅茶客時受傷。弄傷左胸及背，胸椎骨骨折
他指受傷後向骨科求診，要接受物理治療；但被告一直拖延支付醫療津貼，最終要透過小額錢債審裁處追討被告才付款。至○八年六月廿七日，自此只能用右手搬運輪椅客的他，要同事調位遷就，結果招來酒樓經理兇惡對待。酒樓董事留意到他不能用左手搬輪椅，大聲叫喊「唔使你做」原告當晚便被解僱。他昨入稟區域法院，控告酒樓殘疾歧視，要求賠償，包括收入損失5.1萬元。
被告律師則指原告不斷看不同醫生提交病假紙，又指保險公司其實已賠償原告醫療費。原告承認醫療費的申索已和解，但否認經常請假。
被告的東主梁振華則供稱，酒樓經理曾向他投訴，原告工作手腳慢，例如替客人斟水太遲，又常在繁忙日子請假，他亦見過原告在協助搬運坐輪椅茶客時面露不悅表情，強調純粹因不滿原告工作表現才解僱。案件編號：DCEO 10/2010
酒樓歧視侍應賠10萬
摘錄自2012年08月08日 新報
2007年在荃灣彩龍船（麗城）酒家任職的一名酒樓男侍應，開工3天後，因協助搬輪椅食客落樓梯，不慎扭傷致左手無力，但酒樓仍繼續要他幫忙搬輪椅客上落，且經理不時流露厭惡語氣和表情，一年多後卒開除他。男侍應指酒樓違反《殘疾歧視條例》，昨獲區院法官判勝訴，可取回10.1萬元賠償金，兼得訟費。採訪：法庭組
申索人簡志成去年由平機會代表入稟區域法院，興訟索償。法官在判決中指，酒樓明知簡左手乏力，不能擔抬重物，沒有理由要求他繼續協助搬抬輪椅，其實這也不應是酒樓侍應的工作。最後酒樓在沒有事先給予警告下，把申索人開除，令事情鬧上法庭，僱主一方卻無令人信服的解釋，更無派負責解僱的酒樓經理上庭解畫。酒樓亦沒安排最了解事件的酒樓經理作供，削弱酒樓一方供詞可信性
官質疑解僱前加薪
法官質疑，倘若申索人工作表現欠佳，為何2008年3月酒樓又會給他加薪2.5%？若申索人真的由於表現欠佳而被解僱，為何炒人時，負責的江姓經理沒有解釋開除理由？法官因而拒絕接納酒樓是基於這名身有殘疾的侍應工作表現不佳，而將他開除。
法官稱，與訟人「彩龍船（麗城）酒家有限公司」違反《殘疾歧視條例》第六和第11條，須賠償申索人5萬元心靈創傷及51,181.7元收入損失，合共101,181.7元。
受傷後左手已無力
簡志成2007年4月18日入職荃灣彩龍船，酒樓入口距離行人路有13級樓梯，簡每日須與其他3名侍應合力擔抬坐輪椅食客進出酒樓，繁忙日子要搬抬30轉之多，月薪約8,000元。簡志成4月21日一次抬輪椅客落梯級時，不慎扭傷左邊胸部、腋窩及背脊，其後驗出是胸椎受壓裂傷，無法用左手擔抬重物，只能單用右手，喪失了1%的謀生能力。
法官總結案情，認為真正導致雙方關係破裂「冇彎轉」，極有可能是申索人曾聲稱會告僱主不賠醫藥費，另外上級對申索人受傷後的工作表現，也處處看不過眼。
案件編號：DCEO10/2010
主審：潘兆童法官
DCEO
10/2010
IN THE
DISTRICT COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
EQUAL
OPPORTUNITIES ACTION NO.10 OF 2010
--------------------
BETWEEN
KAN
CHE SING (簡志成) Plaintiff
and
LUCKY
DRAGON BOAT (BELVEDERE) RESTAURANT LIMITED (彩龍船（麗城）酒家有限公司
Defendant
--------------------
Coram:
Acting Chief District Judge S. T. Poon in Court
Dates of
Hearing: 19th and 20th December 2011
Date of
Handing Down of Judgment: 7th August 2012
--------------------
JUDGMENT
--------------------
Introduction
1. The Plaintiff was employed by the Defendant
as a waiter in its Chinese restaurant situated at Tsuen Wan. By this action, the Plaintiff sued the
Defendant under sections 6(a), 6(b) and 11(2)(c) of the Disability
Discrimination Ordinance[1] (“the Ordinance”).
2. The main entrance of the Defendant’s
restaurant is located at a level 13 steps above the pedestrian way and there
was no facilities provided for wheelchairs to go up or down the stairs. In each and every time when wheelchair bound
customers are to enter or exit the restaurant, 4 of the restaurant’s waiters
will be summonsed[2] to carry together
the wheelchair with the customer on it up or down the stairs.
3. On 21st April 2007, the Plaintiff was injured
at the time when he helped carrying a wheelchair and the customer down the
stairs. He sought treatment from the Yan
Chai Hospital on the same date and was diagnosed to have suffered from sprained
injuries to his left chest, left armpit region and his back. He was assessed by the Employees’
Compensation (Ordinary Assessment) Board to have suffered from 1% loss of
earning capacity.
4. It is the Plaintiff’s case that he was at the
material times a person with disability within the meaning of the Ordinance as
a result of his aforesaid injuries. And
that, he was discriminated on the ground of his disability by the Defendant in
that:
(a)
The Defendant delayed or defaulted in the reimbursement of the medical
expenses to him;
(b)
On 27th June 2008, Mr. Kong Kwok Sing (“Kong”), a manager of the
Defendant, displayed ferocious facial expression to him when he helped
carrying a wheelchair and Kong was
apparently dissatisfied when he requested to hold the left side of the
wheelchair due to his injuries on the left side of his body;
(c)
On 29th June 2008, Mr. Leung Chun Wah (“Leung”), a director of the
Defendant, showed a disparaging facial expression to him, yelled at him and
directed him to go away when he was about to help carrying a wheelchair bound
customer; and
(d)
On 29th June 2008, the Defendant, through Kong, terminated his
employment by payment of 7 days’ salary in lieu of notice without giving any
reasons.
5. Mr. Cheung, counsel for the Plaintiff,
submitted in his opening that the Plaintiff had been subjected to unreasonable,
hostile, disparaging or even humiliating treatment since he has suffered from
the disabilities.
6. On the other hand, it is the Defendant’s case
that they believed at the material times that the Plaintiff had already
recovered from his injuries and the dismissal of the Plaintiff was due to his
poor performance.
The Law
7. Section 6 of the Ordinance provides that:
“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;
(b) He applies to that other person a
requirement or condition which he applies or would apply equally to a person
without a disability but-
(i) Which is such that the
proportion of persons with a disability who can comply with it is considerably
smaller than the proportion of persons without a disability who can comply with
it;
(ii) Which he cannot show to be
justifiable irrespective of the disability or absence of the disability of the
person to whom it is applied; and
(iii) Which is to that person’s
detriment because he cannot comply with it; or
(c) ......”
8. In connection with the comparison of cases
under section 6, section 8 of the Ordinance provides that:
“A comparison of the cases of persons with
or without a disability under section 6 shall be such that the relevant
circumstances in the one case are the same, or not materially different, in the
other.”
9. The principal focus of section 6 of the
Ordinance is on ensuring equality of treatment[3].
10. Section 6(a) and section 8, as described as
direct discrimination, require the court to determine two separate questions:
(a)
To compare the treatment of the complainant with the treatment of a
suitable comparator (the comparator question); and
(b)in the event that less favourable
treatment is established the court should decide whether the less favourable
treatment was given on the ground of the complainant’s disability (the
causation question) [4].
11. To answer the comparator question, the court
has to identify the circumstances attending the treatment given (or to be
given) to the disabled person and examine what would have been done in those
circumstances if the person concerned was not disabled[5].
12. On the other hand, for section 6(b), as
described as indirect discrimination, no comparison under section 8 is
required.
13. Section 11(2)(c) of the Ordinance provides that:
“(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-
(a) …
(b) …
(c) by dismissing that person, or
subjecting him to any other detriment.”
Evidence
14. The Plaintiff gave evidence at trial.
15. As opposed to one would expect, Kong, who has
been accused of acting discriminatorily in various ways against the Plaintiff,
did not give evidence. Leung gave
evidence for the Defendant. When asked
about the reason why Kong is not called to give evidence for the Defendant,
Leung said that it is because the incidents happened too long ago.
Plaintiff’s
evidence
16. The Plaintiff worked as a waiter in the
Defendant’s restaurant from 18th April 2007 until 29th June 2008 when he was
dismissed by Kong, on behalf of the Defendant, by giving him 7 days’ wages in
lieu of notice. He was not told of the
reason of his dismissal at the time.
17. He had initially a monthly salary of HK$8,000
and it was increased to HK$8,200 in March 2008.
18. As part of his job duties, whenever a
wheelchair bound customer is entering or leaving the restaurant, he has to help
lifting the wheelchair and the customer together with 3 other waiters up or
down the 13 steps in front of the entrance.
Approximately, he has to help lifting 12 wheelchairs on a weekday and 30
wheelchairs on a day in weekends.
19. On 21st April 2007, he was injured while
carrying a wheelchair bound customer down the stairs. As he was using his left hand to carry the
right side of the wheelchair at that time, the left side of his body was
injured. He informed Kong of the
accident immediately and went to Yan Chai Hospital to seek treatment.
20. He was given sick leaves by medical doctors
for 17 days in the period between 21st April 2007 and 13th May 2007. However, the pain on his chest persisted
and he needed medical attention thereafter.
21. In the period between 25th September 2007 and
23rd June 2008, he took in total 13 days’ leaves for attending follow up
treatments and physiotherapies. Except
for 1 day where sick leave was granted, the leaves taken were counted as rest
days.
22. All along, the Plaintiff has provided the
receipts of medical expenses to Kong promptly for reimbursement. However, despite repeated demands by the
Plaintiff, no reimbursement has been made until the Plaintiff threatened to sue
the Defendant at the Small Claims Tribunal.
As late as in January 2008, the Defendant reimbursed the medical
expenses incurred in the period between 21st April 2007 and 11th May 2007 to
the Plaintiff.
23. Moreover, for a sum of HK$750 of medical
expenses incurred in the period between September and November 2007, the
Defendant only paid the amount in July 2008, after the Plaintiff obtained a
judgment from the Small Claims Tribunal and executed it against the Defendant’s
properties.
24. On the other hand, Mr. Lee Wing, another
employee of the Defendant, was treated more favourably by the Defendant. In
November 2007, Mr. Lee hurt his left foot by hot water in the course of his
employment with the Defendant. The
medical expenses incurred in the period between 4 November 2007 and 20 November
2007, totalling HK$588, was reimbursed promptly by the Defendant as early as in
December 2007.
25. The Plaintiff has reported the accident to
the Labour Department. The Employees’
Compensation (Ordinary Assessment) Board issued the Form 7 in September 2007
and assessed the Plaintiff as having 0.5% loss of earning capacity. Upon objection by the Plaintiff of the
assessment, reassessment has been made and the loss of earning capacity was
reassessed to 1% as shown in the Form 9 issued in February 2008.
26. The Defendant has received and had knowledge
of the Form 7 and Form 9 and was well aware of the disabilities of the
Plaintiff all along.
27. The real cause of the Plaintiff’s chest pain
was not known until he received x-ray examination by a private laboratory in
June 2008. It was revealed that there
were mild compression fractures on his thoracic spine.
28. With legal aid, the Plaintiff took out
proceedings against the Defendant for employees’ compensations in August 2008.
The parties then reached a global settlement on both the employees’
compensation and common law claims in November 2008. There is nothing in the evidence in this
action on the terms of the global settlement.
29. Since after the accident, Kong and Leung had
been expressing dissatisfaction against the Plaintiff because of his taking of
sick leaves. Notwithstanding his
injuries, the Plaintiff was still required to help carrying wheelchairs up and
down the stairs. And because of his
injuries, the Plaintiff could only use his right hand to lift the
wheelchairs. This was noticed by many
colleagues including Kong and Leung.
30. On 27th June 2008, the Plaintiff was
summonsed to help carrying a wheelchair bound customer up the stairs to the
restaurant. When the Plaintiff came out
from the restaurant, he noticed that Kong and another waiter were already
standing at the left hand side of the wheelchair and Kong was displaying a
ferocious facial expression to him. The
Plaintiff then asked Kong to switch to a right hand corner so as to enable the
Plaintiff to use his right hand to lift the wheelchair. Kong acceded to his request but was obviously
dissatisfied.
31. On 29 June 2008, Leung witnessed the
Plaintiff used only his right hand to carry wheelchairs. At about 2 p.m., when the Plaintiff was about
to help carry a wheelchair bound customer to go down the steps, Leung showed a
disparaging facial expression to the Plaintiff and yelled at him that there is
no need for him to do it and told him to go back to the restaurant. The
Plaintiff understood from Leung’s words, facial expression and gesture that
Leung was dissatisfied with the Plaintiff’s inability to use his left hand to
carry the wheelchair.
32. At 11 p.m. on the same day, Kong told the
Plaintiff that he was dismissed by the Defendant with 7 days’ wages in lieu of
notice. Kong did not tell him the
reasons for his dismissal.
Leung’s
evidence
33. Leung gave evidence that the working
performance of the Plaintiff was all along poor. In particular, he did not serve customers
well and often deliberately took leave at the time when the restaurant was most
busy. Leung had given repeated oral
warnings to the Plaintiff regarding his poor performance but there was no
improvement.
34. He did not yell at the Plaintiff as alleged
nor did he show a disparaging facial expression to him. He never disliked the Plaintiff because of
his disabilities.
35. The Plaintiff was dismissed due to his below
par performance and it had nothing to do with his disabilities. It fact, he had made enquiries on 7 and 15
May 2008 to the Labour Department about the dismissal of the Plaintiff. It was not until about 1 week before the
dismissal that the Labour Department confirmed with the Defendant that they
could dismiss the Plaintiff after the employee compensations assessment being
finalized.
36. Concerning the delay in reimbursement of
medical expenses, Leung explained in his witness statement, briefly, that it
took time for the account people to process the Plaintiff’s request for
reimbursement. No details have been given to substantiate the explanation. At trial, however, Leung said that the
Defendant needed to wait for the final outcome of the Employees Compensations
proceedings before payment as the matter was covered by insurance.
Discussion
37. As submitted by Mr. Cheung, the definition of
“disability” under the Ordinance is a board one. On the evidence the Plaintiff was suffering
from compression fractures on his thoracic spine rendering him unable to lift
heavy objects with his left hand. In my
view such disability falls within the meaning of the word under the Ordinance.
38. The complaints against the Plaintiff’s
performance have not been substantiated sufficiently by evidence. There had not been any written warnings given
to the Plaintiff regarding his alleged poor performance. The Defendant had been planning to dismiss
the Plaintiff for quite some time and they have enquired with the Labour
Department on its legality, obviously because of the fact that there was a
pending claim under the Employees Compensations Ordinance. With this intention in mind, it would be
improbable that no written warnings had been given to the Plaintiff in
preparation of the dismissal, should there be existence of such poor
performance.
39. Concerning the complaints about the
Plaintiff’s attendance, no records of the Plaintiff’s absence had been produced
by the Defendant to show that the Plaintiff had deliberately chosen the busiest
dates to take leaves. On the other hand,
from the evidence of the Plaintiff, none of the 9 occasions on which the
Plaintiff went to see a doctor or attended prescribed x-ray examinations fell on
a Saturday, Sunday or public holiday.
40. As submitted by Mr. Cheung, Kong is the best
person to tell about the Plaintiff’s alleged poor performance. He was also the person who dismissed him. Whilst there was no suggestion of his
unavailability, it is inconceivable that the Defendant chose not to ask Kong to
give evidence for them, should the alleged poor performance really exist.
41. Furthermore, according to the Plaintiff, Kong
had not given any reasons for his dismissal.
Again, should it be the real reason for dismissing the Plaintiff, it is
inconceivable that Kong would not mention the Plaintiff’s poor performance to
him. Knowing full well that there was a
real risk of litigation between the parties on the dismissal.
42. Another point to note is that,
notwithstanding the alleged poor performance of the Plaintiff, his salary was
increased for 2.5% in March 2008.
43. I reject, on the evidence before me, the
Defendant’s allegation that the reason for the Plaintiff’s dismissal was
because of his below par performance.
44. In my view, the decision to dismiss the
Plaintiff was more probably due to the soured relationship between the parties
since after the Plaintiff’s injuries.
The Plaintiff had threatened to sue and indeed sued the Defendant for
reimbursement of medical expenses and there was a potential claim for
employees’ compensations against the Defendant.
45. The incidents happened on 27 and 29 June 2008
were illustrations of the parties’ situation.
Here I accept the Plaintiff’s version of facts as to what had happened
on the two days. As I have mentioned
before in this judgment, I am sceptical about Kong’s failure to give evidence
for the Defendant and adverse inference has been drawn against the Defendant
because of this. The well known
principles in Armory v Delamirie[6] is applicable in the present situation.
46. Having said that however, it would not be
sufficient, merely on the facts described by the Plaintiff, to conclude that
the rude treatments or hatred (as described by Mr. Cheung in his submission),
against the Plaintiff by Kong and Leung on the relevant two days were due to
the Plaintiff’s disabilities. Although I
do not doubt the Plaintiff’s evidence on his subjective feelings in his
interpretation on Kong’s and Leung’s expressions and gestures, what has been
described in the evidence about their conduct was common to a person’s
behaviour towards another person who he is not in good terms with. There has been no remarks or otherwise made
by Kong or Leung that pointed to or directed at the Plaintiff’s disabilities.
47. Nevertheless, the hatred, as expressed by
Kong and Leung towards the Plaintiff, stemmed from the very fact that the
Plaintiff has, after his injury, caused a lot of troubles to Kong and Leung and
the Defendant. I would say therefore,
such hatred was actually caused by the Plaintiff’s disabilities.
Direct
Discrimination
48. All along, Kong and Leung must have
knowledge about the disabilities of the Plaintiff. The Plaintiff had been regularly submitting
medical certificates to them and in the course of moving up or down the
wheelchairs, they must have noticed that the Plaintiff could not use his left
hand. Besides, the Defendant has been
provided with the Form 7 and Form 9; and was told by the Plaintiff in February
2008 that he would appeal against the assessment results.
49. There is no justifiable reason provided by the
Defendant for the delay in repaying medical expenses to the Plaintiff. No basis has been given in putting the blame
on the Defendant’s accounting people. When compared with the situation of
another employee Mr. Lee, the reimbursement of medical expenses to the
Plaintiff was indeed seriously delayed without apparent reasons.
50. In my view, the Plaintiff has been treated
less favourably by the Defendant, through Kong and Leung, by the delay in
reimbursement of medical expenses to the Plaintiff. And such less favourable treatment was caused
by the Defendant’s hatred, through Kong and Leung, towards the Plaintiff, as
mentioned in the above paragraphs.
51. In my view, as the cause of the troubles was
in fact a result of the Plaintiff’s disabilities, the hatred can be regarded
also as aiming at the Plaintiff’s disabilities.
Therefore, it is my finding that the less favourable treatment was given
on the ground of the Plaintiff’s disabilities.
52. Moreover, the dismissal of the Plaintiff was
also due to the same hatred against him.
For the same reasons, I find that the Defendant contravened section
11(2)(c) of the Ordinance.
Indirect
Discrimination
53. Concerning indirect discrimination, in my
judgment, the complaint of the Plaintiff falls squarely within section 6(b) of
the Ordinance.
54. Knowing full well that the Plaintiff can only
use his right hand to lift the wheelchairs and his injuries were caused by
helping to lift a wheelchair, the Defendant should not have continued requiring
the Plaintiff to help lifting wheelchairs.
The Plaintiff was employed as a waiter.
Lifting of wheelchairs should not be essential to the Plaintiff’s duties
in his employment.
55. I find that the Defendant has contravened
section 6(b) of the Ordinance in requiring the Plaintiff to help lifting
wheelchairs after his being injured.
Damages
56. The Plaintiff claims against the Defendant
for the injury to his feelings and loss of income.
57. Regarding the injury to feelings, considering
the amount awarded in similar cases[7], I find HK$50,000 the appropriate amount
to be awarded under this head.
58. As for the loss of income, I accept the
Plaintiff’s evidence that he could only secure a job after 185 days from his
dismissal. With HK$8,610 as the monthly
income in the employment of the Defendant, the loss of income is HK$51,181.70
after deducting the 7 days’ wages in lieu of notice received from the
Defendant.
59. I do not think the Defendant’s wrongful acts
of discrimination resulted in any future loss of earnings of the Plaintiff.
60. Judgment is therefore entered against the
Defendant in favour of the Plaintiff in the sum of HK$101,181.70 and interest
thereon at 4% per annum from the date of writ until judgment and thereafter at
8% per annum until payment.
61. Costs order nisi that the costs of this
action be to the Plaintiff to be taxed if not agreed, with certificate of
counsel. The costs order nisi shall
become absolute upon the expiry of 14 days from the date of this judgment.
62. The Plaintiff’s own costs be taxed in
accordance with Legal Aid Regulations.
Signed
(S. T.
Poon)
Acting
Chief District Judge
Mr. Kam
Cheung instructed by Messrs Paul C K Tang & Chiu for the Plaintiff.
Ms. Koo
Yeuk Lan instructed by Messrs Michael Pang & Co for the Defendant.
[1]
Cap.487.
[2] The
manager will press a bell installed at the entrance to notify the waiters
whenever a wheelchair bound customer needs help.
[3] M v
Secretary for Justice [2009] 2 HKLRD 298, at p.325.
[4]
Ibid, at p.326.
[5]
Purvis v State of New South Wales (2003) 217 CLR 92, [1998] HCA 18.
[6]
(1722) 1 Str 505.
[7]郭永新 v羅容佳 DCEO 2/2007, Ip Kai Sang v Federal Elite
Limited DCEO 8/2006.
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