Dr. Alice Li Miu-ling –v- The Hong Kong Polytechnic University [DCE01/2004]

In brief:

A former assistant professor (“Plaintiff”) lodged a complaint with the District Court alleging that she was sexually harassed and victimised during her employment (for the period 1996-1998) with Hong Kong Polytechnic University (“Defendant”). She alleged that her employment contract was not renewed after she complained against the then acting head of department, Dr. Wong. The Plaintiff also brought claims against the Defendant for breach of the Personal Data (Privacy) Ordinance and defamation for publishing documents that she claimed were untrue.

The District Court dismissed all of the Plaintiff’s claims on the following basis:

  1. Sexual harassment – her claims for sexual harassment were found to be unsubstantiated in that there was a lack of corroborating evidence, a significant delay in lodging the complaints, changes were made to the allegations, the Plaintiff’s behaviour was inconsistent and the evidence given by the Defendant’s witnesses was preferred. It was also significant that the complaints were lodged after Dr Wong’s decision not to recommend the renewal of the Plaintiff’s contract.

The Plaintiff failed to prove her case of sexual harassment or that the Defendant was vicariously liable to prevent the conduct from occurring. It was held that if the harassment had occurred then the Defendant had taken reasonably practicable steps to prevent any sexual harassment by the introduction of a Code of Ethics to all staff in 1997 and by adopting a policy under an Administrative Note in 1999, which prohibited sexual harassment with regulations for resolution of sexual harassment complaints.

  1. Victimisation – it was held that the Defendant had not victimised the Plaintiff and that any adverse decisions relating to the Plaintiff’s employment were made on the basis of her performance only.
  2. Breach of Personal Data (Privacy) Ordinance – it was held that the Defendant had exercised due diligence and reasonable care in providing the Plaintiff with access to her personal data (in accordance with the terms of an amended Enforcement Notice). It was also found that the Plaintiff had not demonstrated any damage or injury to feelings as a result of any delay therefore no damages were payable in any event.
  3. Defamation – the Defendant was successful in proving that it was entitled to rely on the defence of justification and qualified privilege in that there was a large volume of documents, departmental memos, notes and records in support of the comments that were made in relation to the Plaintiff’s performance. The contemporaneous documents demonstrated that the comments were substantially true and were made in the discharge of the makers’ duties without malice or ill will.

Take away points:

  1. It is interesting to note that the Plaintiff brought a claim for defamation for malicious falsehood in relation to documentation relating to her performance amongst other matters. This is an unusual route for an employee to take when challenging poor performance and highlights the importance of having supporting material to justify any negative statements made in documentation relating to employees.
  2. The importance of having policies against sexual harassment and following internal complaints procedures is evidenced by this case. The Defendant was able to show successfully that it had taken reasonably practicable steps to prevent sexual harassment and this would not have been possible in the absence of appropriate policies and an effective complaints procedure.