Three Indonesian domestic helpers claimed that they were assaulted and abused by Law Wang Tung,a Hong Kong housewife, during their employment by Defendant between 2010 and 2014. The District Court convicted the Defendant of 19 charges assault, intimidation, and failure to provide wages, insurance and holidays during the complainants’ employment, and was sentenced for six years of imprisonment and a fine of HK$15,000. During the trial, that one plaintiff was deprived from sleep, food and wages during the employment, and had suffered from extensive physical damages due to the serious abuse, assault and beating from defendant. Evidence also showed that the other two victims also suffered from similar but different degrees of harm while working for the Defendant. In reaching the judgment, the court held that the evidence was admissible for uncharged acts so as to “get a proper picture about the characters involved in the case” and that the account would be incomplete or incoherent without such evidence. The court also noted that the only issue in the case was the credibility of the witnesses. Despite defense’s attempt to challenge the consistencies and credibility of the victims’ testimonies and the question for lack of independent evidence, both the district court and the appellate court found in favor for the victims in the respective proceedings, by taking into account the victims’ background and the specific circumstances in the case. In affirming the decision, the Court of Appeal need to protect the interests of domestic helpers and articulate the society’s abhorrence for conduct.
Women and Justice: Court: District Court of the Hong Kong Special Administrative Region
The Plaintiff was employed as secretary of the Director by the Defendant in 2001. In February 2002, the Plaintiff suffered a threatened miscarriage, and was admitted to the hospital several times thereafter. From June to August 2012, she took sick leave frequently for treatment of her pregnancy complications. During that period, a permanent secretary was hired by the Defendant. The Plaintiff returned to work after expiry of her maternity leave in November 2012 as agreed with the Defendant, but was moved to a new work station which was not properly equipped, and was not given her original duties. Shortly after she resumed her work after maternity leave, she was dismissed by the Defendant. She sued the Defendant for her dismissal on the grounds of discrimination due to pregnancy, family status and victimization. The Court applied the “but for” and “less favorable treatment” test, and held that the burden is on the Plaintiff to prove discrimination on a balance of probabilities – once the Plaintiff can show that a possibility of discrimination can be inferred from the primary facts, the Court will look to the employer for an explanation, with which or if such explanation is not enough, the Court will infer the existence of discrimination. Based on the facts and evidence in this case, the Court found that the Plaintiff has established the primary facts on her claims on the grounds of discrimination due to pregnancy and family status, and found that the Defendant failed to establish the unsatisfactory performance of the Plaintiff and there were no significant enough reasons for the Defendant to dismiss the Plaintiff. On a balance of probabilities, the Court concluded that the Plaintiff was dismissed because of her pregnancy and family status, and held the Defendant liable. Damages for injury to feelings and loss of income were awarded to the Plaintiff.
The Plaintiff worked as a cashier at King Palace Chinese Restaurant, which was operated by King of the King Group Limited (“Defendant”). The Plaintiff alleged that she was sexually assaulted by Mr. Leung, an employee of the Defendant, who made a sexual remark to the Plaintiff and also touched the Plaintiff’s chest. Immediately after the incident, the Plaintiff reported it to her direct supervisor, who promised to follow up on the incident, but did not do so. When the Plaintiff raised the harassment again later on and wanted to report it to the police, her supervisor asked the Plaintiff not to do so or the Defendant would terminate both her and Leung’s employment. Eventually, her supervisor arranged a meeting and asked Leung to apologize to the Plaintiff, but he did it reluctantly and disrespectfully. The Plaintiff, irritated by the disrespect, slapped Leung, and was then immediately fired by the Defendant. The Plaintiff settled the case with Leung and made a claim under the Sex Discrimination Ordinance. The Court held that the dismissal was not made by the Defendant on the ground of the Plaintiff’s sex, or because she was sexually harassed, but because the Plaintiff slapped the harasser. However, the Court ruled that the acts committed by Leung constituted unlawful sexual harassment, and that the Defendant, as employer of Leung, was vicariously liable for Leung’s sexual harassment for the reason that the Defendant failed to take all reasonably practicable steps to prevent the sexual harassment against the Plaintiff in the workplace. The Court awarded the Plaintiff damages for injury to her feelings and costs caused by or in connection with the sexual harassment.
The plaintiff, Helen Tsang, was employed by Cathay Pacific Airways Ltd. (“Cathay”) as a flight attendant in 1979. According to the retirement policy at the time of her employment contract, the retirement age for a female attendant was 40, while the retirement age for a male attendant was 55. Ms. Tsang was required to retire in 1992 when she reached 40. Cathay offered consecutive one year extensions of her employment thereafter till 1997 when she reached the age of 45. During that period, Cathay adopted a new retirement policy in 1993, which changed the retirement age of both the female and male cabin crew to the age of 45 and provided that female employees already on extension may choose to further extend the employment with Cathay till the age of 45 if Cathay agreed so. After 1997 (when Ms. Tsang was 45), Cathay did not offer Ms. Tsang any extension of her employment. Ms. Tsang sued Cathay alleging that the retirement policy implemented by Cathay was discriminatory and that she was discriminated on the ground of her sex. The court held that it constituted direct sex discrimination against Ms. Tsang because a male employee in the similar situation would be in a much better position than Ms. Tsang as he would have been entitled to remain employed with Cathay until the age of 55, or would at least have had the option to retire at 45 if he chose so and would have received more favorable benefits than Ms. Tsang had. In reaching such conclusion, the court upheld the view that the employment contract does not form the basis of a discriminatory claim and the discrimination is continuing and actionable if the discriminatory policy has been in place and implemented during subsequent extension(s) of employment.
The complainant, an Indonesian domestic helper, was asked by her employer’s wife to urinate for a home-pregnancy test. After the result showed positive and was subsequently confirmed by a physician, the employer terminated her employment by a month’s notice. Ultimately, the complainant was required to move out of the couple’s home before the notice period ran out. She sued the couple for damages based on, among others, sex and pregnancy discrimination. The court held the couple liable for the act of sex discrimination against the complainant by asking her to take the pregnancy test, despite the fact that she voluntarily participated in the test and wanted to know the result. The court took the view that whether the employee had consented or voluntarily cooperated to take the pregnancy test is not determinative as to deciding the nature of the employer’s request to take the pregnancy test, and that the lack of intent or motive to discriminate by the employer is a factor to assessment of damages but would not bar an act from being determined as discriminatory. The court held that the employer has no right to know about a female employee’s pregnancy status, which is a private matter of the employee. The court determined that requesting a female employee to take a pregnancy test without giving her a choice not to disclose the result to the employer constitutes a “less favorable treatment” to that employee because of her gender, for the reason that a male employee would not be requested to take such a test or reveal such private information to his employer.