Anyone can be subject to illegal dismissal, but can everyone be convicted?
The issues foreign domestic workers (FDW) in Hong Kong face do not always pertain to their identity as an FDW. One current example is the recent complaint lodged in relation to a breach of the Disability Discrimination Ordinance (“DDO”).
The DDO prohibits discrimination by employers “on the ground of the disability of an associate of that other person he treats him less favourably than he treats or would treat a person without such a disability” [1]. A person’s “associate” includes a relative of that person [2]. A recent FDW Claimant logged a complaint in the District Court against her employer and has been provided with legal assistance by the Equal Opportunities Commission [3].
The Claimant was required to undertake heavy renovation work for her employer (the respondent), which resulted in hospitalization for high blood pressure, dizziness and slurred speech. During the hospital treatment, the respondent asked the claimant about her family’s medical history and it was revealed that both of he claimant’s deceased parents had suffered strokes in their fifties. Upon being discharged later that evening, the claimant was dismissed. In the termination letter, her deceased parents’ medical history was given as a reason for dismissal[4].
Another case where a FDW claimant claimed unlawful dismissal, based on claimant’s own disability. The claimant claimed to have been treated abusively and was subsequently dismissed once her employer noticed the disability. The respondent (the employer) successfully argued that the claimant’s dismissal was due to her unsatisfactory work. The judge did not accept the credibility of her witness statement and did not find that any of the abusive or oppressive acts were in any way connected to her disability and concluded that the reason for dismissal was unsatisfactory work performance [5]. It should be noted that under Section 3 it is sufficient that the act is one or more of the reasons for the act, but is not required to be the dominant or substantial reason [6] [7]
This decision, together with the fact that no successful conviction has been obtained from the Racial Discrimination Ordinance [8] makes one wonder whether the legislation for marginalized groups does indeed offer adequate protection to the people they seek to protect [9]. The question remains as to whether or not it can be properly implemented, without the societal prejudice of these groups forming a part of the courtroom discussion and preventing justice from being duly carried out. It remains to be seen, especially in light of the dismissal of a FDW for her deceased family’s medical conditions.
References
1. Disability Discrimination Ordinance (Cap 487), s 6 (c).
2. Disability Discrimination Ordinance (Cap 487), s 2.
3. Equal Opportunities Commission, ‘The EOC Gives Legal Assistance to a Foreign Domestic Helper in a Disability Discrimination Case’ (Equal Opportunities Commission Press Release, November 1 2019) <https://www.eoc.org.hk/EOC/graphicsfolder/ShowContent.aspx?ItemID=16320> accessed on 10 November 2019.
4. The SUN, ‘Employer can’t dismiss helper based on parent’s medical record, says EOC’ (The SUN, 8 November 2019) < https://www.migrasiablog.com/post/the-hidden-implications-of-the-protests-on-foreign-domestic-workers> accessed on 10 November 2019.
5.Aquino Celestina Valdez v So Mei Ngor Betty [2005] HKCU 1234.
6. Disability Discrimination Ordinance (Cap 487), s 3.
7. Photo by Jonathan Wong/South China Morning Post via Getty Images, ‘Celestina Valdez Aquino outside Wanchai District Court’.
8. Singh Arjun by his next friend Singh Anita Guruprit v Secretary for Justice & Anor [2016] HKCU 1271.
9. The enactment of the Discrimination Legislation (Miscellaneous Amendments) Bill 2018 shows that the government is willing to improve the legislative protection offered.