Termination during illness: A recent case of a Foreign Domestic Worker’s discrimination claims

In our previous article, Unveiling the Struggles of Hong Kong’s Invisible Workforce we explored the challenges faced by foreign domestic workers (“FDWs”) in Hong Kong, highlighting the critical role they play in many households, while also underscoring the legal and social difficulties they may encounter.

A recent ruling in the District Court has brought attention to the legal intricacies surrounding the employment and treatment of FDWs in the event of critical illness. The case was brought by the Executrix (the “Claimant”) of the late Joan Sarmiento Guting, a FDW who sadly passed away in August 2018 (the “Employee”). It involved allegations against the Employee’s former employer for unlawful discrimination and harassment under the Disability Discrimination Ordinance (“DDO”) and unlawful termination under the Employment Ordinance (“EO”).

Background

The Employee began her employment with the Employer in January 2015. During the course of her employment, the Employee was diagnosed with critical medical conditions including cervical cancer. She was written off on sick leave for the period from 5 March 2018 until 29 April 2017. Some time between the late hours of 30 April 2017 and early hours of 1 May 2017, her employment was terminated by the Employer by payment in lieu of notice.

Allegations

The Claimant alleged that the Employee was subjected to continuous discrimination and harassment by the Employer from 31 March to 24 April 2017 due to the Employee’s illness (“disability”). In statements made before her death, the Employee alleged that the Employer:

• ceased all face-to-face communications with her upon her return from the hospital, resorting instead to text messages.
• installed CCTV cameras to monitor her.
• failed to provide sufficient food or a food allowance.
• disposed of cooking pans, plates and utensils used by the Claimant upon learning she had used them.
• failed to provide reasonable accommodation in her living quarters.
• made her wash her clothes by hand refusing permission to use the washing machine.

It was claimed that the conduct by which the Employee was terminated constituted harassment. She claims that that she was woken up in the middle of the night by the family and pressured into signing the termination letter, then forced to leave the residence immediately without assistance.

Defence

The Employer denied all of the Claimant’s allegations arguing that the Employee had become uncommunicative since early 2017 necessitating the need to communicate via text message. The CCTV camera was installed in the living room looking at the main door and dining room only, and the reason it was installed was to monitor their dog and to prevent the Employee from wearing provocative clothes inside the dining room or bringing unknown people to the residence (the Employer discovered that the Employee had taken what she perceived as seductive photos at the residence on various working days and posted them on her Facebook). The Employer contended that the Employee was provided food and was not prohibited from using kitchen utensils, and no request for a change in sleeping arrangements was made by the Employee. The Employer also contended that the Employee was never prohibited from washing her clothes by washing machine but only that she was not allowed to mix her clothes with the Employer and her family’s clothes for hygiene reasons. The Employer’s position was that the decision to terminate the Employee’s employment was made before the Employee’s diagnosis and hospitalisation, and the reason was performance related rather than due to her sickness.

Legal Issues

The court examined three primary legal issues:

• Whether the Employer engaged in direct disability discrimination under the DDO.
• Whether the Employer’s actions constituted unlawful harassment.
• Whether the Employee’s termination violated the EO by occurring on a sick day and whether it breached the implied term of mutual trust and confidence.

Judgment

The court highlighted that the fact finding exercise was difficult as the Employee had already passed away and therefore the court could not observe her give live evidence and be cross examined to assess her credibility. Further, there were not much contemporaneous evidence and the Claimant’s case was heavily dependent on hearsay evidence.

After reviewing the evidence, the court found insufficient credible evidence to support the Claimant’s allegations of discrimination and harassment. The court found that the decision to terminate the Employee's employment was made prior to the knowledge of her illness and was based on legitimate concerns about her performance and behaviour, which was supported by contemporaneous evidenced produced by the Employer. The court found that the termination complied with EO provisions, as it was not executed on a day covered by the sick leave certificate.

One significant aspect of the case was the presentation of WhatsApp messages exchanged between the Employer and her family members, which proved that performance issues had been raised, and the ultimate decision to terminate the Employee was made before the Employee became ill. These messages contained derogatory references to the Employee, calling her a "sick god" and an "evil spirit"  but the court ultimately found that they did not constitute sufficient evidence of unlawful discrimination or harassment. The messages, although inappropriate, were deemed insufficient to prove that the Employee was dismissed due to her disability.

The court ruled in favour of the Employer, rejecting the Claimant’s requests for declarations, damages, and an apology order.

Takeaways

This case underscores the need for employers to maintain detailed and contemporaneous records of employee performance and conduct. Such documentation is critical in defending against claims of discrimination and harassment. Employers should ensure that termination decisions are based on legitimate, non-discriminatory reasons and are well-documented to avoid legal challenges.

For employers managing employees with serious health issues, it is crucial to handle such situations with sensitivity and clear communication. Providing appropriate accommodations and documenting all interactions can help mitigate potential legal risks.

Moving Forward

While this ruling offers clarity on certain legal aspects of termination during sickness leave, it also underscores the ongoing need for balanced protections for FDWs. Employers and policymakers alike must continue to work towards creating an environment that respects the rights and dignity of FDWs while also ensuring that employers can manage their employees effectively and fairly.