In the recent District Court case of Kan Che Sing v Lucky Dragon Boat (Belvedere) Restaurant Limited, a restaurant owner was found to be guilty of discriminating against a waiter on the basis of his disability and made to pay the waiter almost a year’s wages in compensation.
Mr Kan was employed at the Lucky Dragon Boat (Belvedere) Chinese Restaurant as a waiter . As part of his duties, Mr Kan was asked to assist (with 3 other waiters) wheelchair-bound customers, by carrying the chair and the customer up 13 steps.
On 21 April 2007 (only 3 days after Mr Kan started work), Mr Kan was injured while carrying a wheelchair-bound customer down the stairs. Mr Kan sustained an injury on the left side of his body (which was later diagnosed as a mild compression fracture on his thoracic spine). Following the injury, Mr Kan had to take 30 days’ leave from work and incurred medical expenses. Once he returned to work, Mr Kan asked his employer for reimbursement of his medical expenses (as he was entitled to do under the Employees’ Compensation Ordinance (Cap. 282)). Despite repeated demands, the employer delayed paying the majority of the medical expenses until Mr Kan was forced to obtain a judgment against the employer in the Small Claims Tribunal to obtain reimbursement.
Having reported the incident to the Labour Department, the Employees’ Compensation (Ordinary Assessment) Board assessed Mr Kan has having 1 % loss of earning capacity. This assessment was notified to the employer and the employer and Mr Kan reached a global settlement of Mr Kan’s employee compensation claims.
On Mr Kan’s return to work, he alleged that he was treated badly by his managers and that, despite his injury, he was still made to assist with carrying wheelchair-bound customers. He asked to use his right side to carry the chairs to avoid worsening his injury on the left side. When Mr Kan complained, his manager displayed a “ferocious facial expression to him” but then acceded to his request. On another occasion when Mr Kan was carrying a chair on his right side, his manager showed him a “disparaging facial expression” and yelled at him to go away. On the same day Mr Kan was told that he was dismissed with 7 days’ wages in lieu of notice. Mr Kan was not given any reasons for his dismissal.
Mr Kan brought a claim against the restaurant for disability discrimination. He alleged that he was disabled due to his injury rendering him unable to lift heavy objects with his left hand. He alleged that, due to his disability he had been harassed, treated poorly and then eventually dismissed. He also alleged that he had been treated less favourably than a non-disabled employee The employer argued that it had not discriminated against Mr Kan but that he had been dismissed for poor performance. No evidence was given to support the allegation that Mr Kan had been a poor performer and the manager accused of treating Mr Kan badly and whom it was said made the decision regarding his dismissal did not turn up to the court to give evidence.
The court found that the employer was guilty of discriminating against Mr Kan on the grounds of his disability. There had been no evidence to substantiate that Mr Kan was a poor performer – indeed not only had he not been given any prior warnings (written or unwritten) as to his performance, he was even given an increase in salary at the beginning of 2008. The Court therefore found that the reason for his poor treatment and dismissal was due to the “soured relationship” between the parties following Mr Kan’s injury. The Court awarded Mr Kan damages of HK$101,181.70 (comprising HK$50,000 for injury to his feelings and HK$51,181.70 for loss of earnings).
This case is a useful reminder that an employee can be “disabled” within the definition of the Disability Discrimination Ordinance without having an obvious disability. An employer can be found guilty of disability discrimination even if no overt comments are made about an employee’s disability. In light of this, an employer should take care in how it treats its disabled employees and, if an employer needs to discipline or dismiss an employee who is disabled for a non-disability related reason, the employer should make sure it follows a proper procedure and keeps written records of its decision and the procedure followed.
NB: In this case the employer had contacted the Labour Department to find out if it could dismiss Mr Kan. The Labour Department had apparently confirmed that Mr Kan could be dismissed after the employees’ compensation assessment had been finalised. Employers should not seek to rely on the Labour Department as a substitute for taking legal advice.