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 respondent had decided to dismiss the employee for legitimate reasons (poor performance and discovery of photos) before knowledge of the illness; contemporaneous evidence (WhatsApp, CCTV, audio) supported that reasoning; the deceased's hearsay statements and friends' accounts were given little weight; 30 April 2017 was a rest day not a sickness day and therefore s33(4B) did not apply; there was no proven harassment or discrimination on the ground of disability and no breach of the implied term; all claims dismissed.

Citation
[2024] HKDC 747
Parties
Claimant/plaintiff: Ma. Carla Arangote Temporosa; Deceased/subject: Joan Sarmiento Guting; Respondent/defendant: Choy Chiu Yee Rita
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
8 July 2024
Case Number
DCEO13/2019
Procedural Posture
Consolidated Equal Opportunities and Employment Termination Actions / Judgment After Trial
Outcome
All claims dismissed
Legal Topics
Direct Disability Discrimination, Harassment, Unlawful Dismissal, Breach of Mutual Trust and Confidence, Sickness Day Protection (s33(4 B) Eo), Hearsay Evidence Weight, Remedies and Costs
Source Language
EN
Discrimination Law Employment Law Contract Law Evidence Law Direct Disability Discrimination Harassment Unlawful Dismissal Breach of Mutual Trust and Confidence +3 more

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Parties

Ma. Carla Arangote Temporosa

Claimant/plaintiff

Joan Sarmiento Guting

Deceased/subject

Choy Chiu Yee Rita

Respondent/defendant

Procedural Posture

Consolidated Equal Opportunities and Employment Termination Actions / Judgment After Trial

Legal Issues

  1. 1 Whether conduct amounted to direct disability discrimination under DDO ss 3,6 and 11(2)(c)
  2. 2 Whether conduct amounted to unlawful harassment under DDO ss 2 and 22
  3. 3 Whether termination was unlawful under EO s33(4B) (dismissal on a sickness day)

Ratio Decidendi

On the balance of probabilities the respondent had decided to dismiss the employee for legitimate reasons (poor performance and discovery of photos) before knowledge of the illness; contemporaneous evidence (WhatsApp, CCTV, audio) supported that reasoning; the deceased's hearsay statements and friends' accounts were given little weight; 30 April 2017 was a rest day not a sickness day and therefore s33(4B) did not apply; there was no proven harassment or discrimination on the ground of disability and no breach of the implied term; all claims dismissed.

Court Disposition

All claims dismissed

Orders

  • No order as to the costs of both actions (costs order nisi)
  • Claimant's own costs to be taxed in accordance with the Legal Aid Regulations