11 April, 2019
In the past few weeks, the local press has followed closely the high profile news regarding the plight of Baby Jane Allas, a 38 year-old foreign domestic worker from the Philippines, who was dismissed by her employer after being diagnosed with cervical cancer. Under Hong Kong law, foreign domestic workers who have been dismissed must leave Hong Kong within 14 days. They also lose their entitlement to public medical services.
By contrast, it was reported that a famous Hong Kong actor has supported his family’s long-time foreign domestic helper during her battle with cancer by taking her to the hospital for check-ups and chemotherapy treatments.
So, what is an employer’s legal obligation when his employee suffers from disability or illness?
Position under the Employment Ordinance
Under the Employment Ordinance (Cap. 57) (EO), it is unlawful for an employer to terminate the employment of an employee who is receiving statutory sickness allowance, except in the case of summary dismissal due to the employee’s serious misconduct. An employer who dismisses an employee who is on paid sick leave is liable to prosecution and, upon conviction, to a maximum fine of HK$100,000. In addition, under the EO, the employer will also be required to pay the aggrieved employee (a) payment in lieu of notice; (b) a further sum equivalent to 7 days’ wages as compensation; (c) his/her entitled sickness allowance; and (d) a compensation up to HK$150,000.
In Allas’ case, she alleges that while on paid sick leave, her employer provided her with a dismissal letter terminating her contract by reason of her cancer diagnosis. However, Allas’ employer insisted that the dismissal letter was not given during her period of sick leave, but “it was effective from after she finished her sick leave”.
If Allas’ employer did terminate Allas’ employment when she was on paid sick leave, then as explained, the termination would be unlawful.
However, if Allas’ employer’s account is true, and Allas was not dismissed during her paid sick leave, then strictly speaking, there is nothing under the EO to prohibit the employer from terminating Allas’ employment by making payment in lieu of notice. Yet, there may be adverse consequences under the Disability Discrimination Ordinance (Cap. 48) (DDO).
Position under the DDO
The definition of disability under the DDO includes total or partial malfunction of a person's body; the malfunction, malformation or disfigurement of a part of a person's body; and the presence in the body of organisms causing disease or illness. The definition also includes chronic illnesses such as cancer, which is protected under the DDO.
Under section 3 of the DDO, if an act is done for 2 or more reasons and one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purpose of the DDO, the act is taken to be done for the reason of the disability. There are defences to complaints of disability discrimination under the DDO. For example, if an employee is not able to fulfil the genuine occupational requirements or he is not able to comply with the inherent requirements of his job. In the present case, as the dismissal letter cited Allas’ disability as the reason for dismissal, unless the employer can show any valid defence, he/she may be held liable under the DDO.
Claims for contravention of the DDO may be brought in the District Court (under section 72 of the DDO) within 24 months beginning from when the act complained of was done; or if there is a report of formal investigations of the act, when such report is published or made available; whichever is the later. The aggrieved employee may claim for (a) injury to feelings; (b) loss of income; and (c) exemplary damages.
In comparison, the following case bears similarity to Allas’ circumstances. In Siu Kai Yuen v Maria College [2005] 2 HKLRD 775, DC, the plaintiff had been employed by the defendant, a school, as a teacher since 1988. He was diagnosed to have rectum cancer in July 2002, and underwent an operation in August 2002. He then started to take sick leave and expected to return to work in November 2002. However, his employment was terminated by the defendant in October 2002, before the end of his sick leave. It was held that the defendant had discriminated against the plaintiff directly under section 6(a) of the DDO. The plaintiff was awarded a total of HK$198,000 in damages for loss of income, sickness pay, and injury to feelings. In several other cases, plaintiffs were also entitled to punitive damages.
Comments
While it is an unfortunate event that employees suffer from any sickness, employers should understand their legal obligations to their employees in order to avoid any contravention of the law.
For further information, please contact:
Elsie Chan, Partner, Deacons
elsie.chan@deacons.com.hk
