TEMPOROSA, MA. CARLA ARANGOTE, THE EXECUTRIX OF THE ESTATE OF GUTING, JOAN SARMIENTO, DECEASED v. CHOY CHIU YEE RITA

TEMPOROSA, MA. CARLA ARANGOTE, THE EXECUTRIX OF THE ESTATE OF GUTING, JOAN SARMIENTO, DECEASED v. CHOY CHIU YEE RITA

On the balance of probabilities the court found the decision to dismiss was made on 13 February 2017 for reasons of unsatisfactory performance and conduct (including discovery of provocative photos), that the decision predated knowledge of illness and any adverse treatment was not shown to be on account of the applicant's disability; contemporaneous evidence (WhatsApp, CCTV, audio) supported respondent's account; 30 April 2017 was the employee's rest day and not a sickness day so s33(4B) did not apply; hearsay statements of the deceased and friends were of limited weight; accordingly no discrimination, harassment or breach of implied term, and dismissal contrary to EO not established.

Citation
[2024] HKDC 747
Parties
Claimant/executrix: MA. Carla Arangote Temporosa; Deceased/subject: Joan Sarmiento Guting (deceased); Respondent/defendant: Choy Chiu Yee Rita
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
8 July 2024
Case Number
DCCJ3408/2020
Procedural Posture
Consolidated Equal Opportunities and Employment Termination Actions / Trial Judgment
Outcome
Claimant's consolidated actions dismissed in full
Legal Topics
Direct Discrimination Under DDO, Harassment Under DDO, Termination Protection Under Employment Ordinance S33(4 B), Implied Term of Mutual Trust and Confidence, Hearsay/evidence of Deceased
Source Language
EN
Disability Discrimination Employment Law Harassment Contract Law Evidence Law Direct Discrimination Under DDO Harassment Under DDO Termination Protection Under Employment Ordinance S33(4 B) +2 more

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Parties

MA. Carla Arangote Temporosa

Claimant/executrix

Joan Sarmiento Guting (deceased)

Deceased/subject

Choy Chiu Yee Rita

Respondent/defendant

Procedural Posture

Consolidated Equal Opportunities and Employment Termination Actions / Trial Judgment

Legal Issues

  1. 1 Whether direct disability discrimination contrary to ss 3, 6 and 11(2)(c) of the Disability Discrimination Ordinance occurred
  2. 2 Whether unlawful harassment contrary to ss 3 and 22 of the Disability Discrimination Ordinance occurred
  3. 3 Whether termination breached s33(4B) of the Employment Ordinance (dismissal on a sickness day)

Ratio Decidendi

On the balance of probabilities the court found the decision to dismiss was made on 13 February 2017 for reasons of unsatisfactory performance and conduct (including discovery of provocative photos), that the decision predated knowledge of illness and any adverse treatment was not shown to be on account of the applicant's disability; contemporaneous evidence (WhatsApp, CCTV, audio) supported respondent's account; 30 April 2017 was the employee's rest day and not a sickness day so s33(4B) did not apply; hearsay statements of the deceased and friends were of limited weight; accordingly no discrimination, harassment or breach of implied term, and dismissal contrary to EO not established.

Court Disposition

Claimant's consolidated actions dismissed in full

Orders

  • Consolidated claims dismissed
  • Costs order nisi: no order as to costs of both actions; each party to bear own costs unless application to vary made within 14 days