Legal Update: Importance Of Contemporaneous Records In Defending Against Discrimination Claim

In a recent decision of Guting, Joan Sarmiento, Deceased v Choy Chiu Yee Rita [2024] HKDC 747 handed down by the District Court, an employer was successful in defending against a disability discrimination claim by a domestic helper. It appears from the judgment that the WhatsApp chat records from the employer showing her dissatisfaction about the helper's work performance were key evidence which led to the decision.

Summary of Case

• The Claimant was employed by the Defendant as a foreign domestic helper.

• The Claimant was later hospitalized and diagnosed with cancer.

• About a month later, the Claimant was dismissed by the Defendant.

• The Claimant passed away in 2018 and the executrix of her estate commenced legal action against the Defendant claiming, among other things, disability discrimination and harassment.

The Court's assessment of the claim can be summarised as follows.

• Having considered the relevant case law, the Court considered the test in determining whether an employer has, in terminating the employment, discriminated against an employee is:

"if an employer is able to prove some other reason for dismissal which, although falls short of sufficient reason to justify summary dismissal, is unrelated to the employee's disability, dismissal by notice or payment of wages in lieu of notice is not unlawful under [the Disability Discrimination Ordinance]"

• After assessing the evidence and the credibility of witnesses, the Court considered that the employer's claim about the unsatisfactory work performance of the helper was supported by contemporaneous and substantive WhatsApp messages (including audio messages) between them and those of the employer's family members.

• Further, based on the employer's family treatment of the helper after she had become ill and the amount of care in executing the dismissal, the Court found it unlikely that the employer would discriminate against the helper. The conclusion was also indirectly supported by the CCTV recording showing that the helper did not feel frightened, vulnerable, intimidated or threatened when moving out of the employer's residence.

• In respect of the employer's remark of calling the helper "溫神" (which may be regarded as having the meaning of evil spirits), the Court found that the WhatsApp messages support the employer's explanation of calling the helper those names due to her anger (about the helper's work). It went on to hold that being mean, making demeaning and abusive remarks or false accusations, or abusive acts, if not connected to the employee's disability, does not constitute harassment.

Key Takeaways

• The decision illustrates the importance of keeping a detailed and continuous "paper trail" showing the legitimate reason for dismissal of an employee. The Court in this case seemed to rely quite heavily on the contemporaneous records in reaching the conclusion that the reason for dismissal of the Claimant is unrelated to her disability.

• In respect of any employment in a commercial context, such contemporaneous records can take the form of internal memoranda, messages or emails demonstrating the real and legitimate reason behind the decision to terminate an employment, which should be unrelated to any protected characteristics under the anti-discrimination legislations¹ .

• Contemporaneous records will help show the legitimacy of any decision to terminate an employee and defend against allegations of discrimination and unlawful termination should they arise.

Postscript

• Even though it may not have been a significant part of the judgment, another area of dispute was whether the helper was on statutory sick leave and therefore unlawfully terminated.

• In dismissing such claim, the Court appeared to focus on the fact that there was no sick leave certificate covering the day of termination (even though the sick leave certificate was obtained subsequently which the Court held that it did not assist the claim²).

• It would seem that the Court missed the opportunity to clarify the position in Suzuya International (HK) Co Ltd v Chung Chun Hei [2007] HKCU 414 that "rest days" cannot be "sickness days" under the Employment Ordinance as it stated that: –

"54. To put it simply, sickness allowance is pay made to an employee on a "sickness day" (see generally Part VII of the Ordinance). "Sickness day" is defined under Section 2(1) of the Ordinance to mean "a day on which an employee is absent from his work by reason of his being unfit therefor on account of injury or sickness." This definition presupposes there is the need to work that day. The corollary is that when there is no need to work, then that day does not qualify as a "sickness day" and considerations of sickness allowance are irrelevant. The Defendant is entitled to full (and not only 4/5) daily pay for rest days and holidays (when there is no need to work) within the sick leave period covered by sick leave or medical certificates." [underlined is our emphasis]

• This is of great significance to employer as section 33(4B) of the Employment prohibits and makes it a criminal offence for any employer to terminate an employment (other than by summary dismissal) on any statutory sickness day.

• Suzuya seems to suggest that an employer may lawfully terminate an employee on a rest day (which occurs at least once a week) even if there is a sickness certificate covering that day.

• Whilst the above proposition may greatly reduce protection afforded to employees on sick leave under the Employment Ordinance, it remains unclear whether this may truly be the correct legal position. In this sense, the Court in Guting may have missed a valuable opportunity to clarify the law.

Footnotes

1. The Hong Kong anti-discrimination legislations protect discrimination on grounds of sex, disability, family status and race. Dismissal will be rendered unlawful as long as discrimination is found to be one of the reasons (N.B. it does not need to be the main or operative reason) for the dismissal.

2. The Court agreed with the observation in Sin Bik Yin v Carat Jewellery Ltd (Unrep) HCLA 49/2004, 6 May 2005.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.