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Chan Choi Yin Janice v Toppan Forms (Hong Kong) Ltd

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date03 March 2006
Year2006
Judgement NumberDCEO6/2002
Subject MatterEqual Opportunities Action
CourtDistrict Court (Hong Kong)
DCEO000006/2002 CHAN CHOI YIN JANICE v. TOPPAN FORMS (HONG KONG) LTD

DCEO 6/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 6 OF 2002

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BETWEEN

　 CHAN CHOI YIN JANICE Plaintiff
　 and 　
　 TOPPAN FORMS (HONG KONG) LIMITED Defendant

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Coram: Her Honour Judge H. C. Wong in Court

Dates of Hearing: 17 – 21, 24 - 27 October 2005 and 25 November 2005

Date of Handing Down Judgment: 3 March 2006

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JUDGMENT

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1. The Defendant is a company incorporated in Hong Kong supplying printing services and printing materials and stationery to corporate clients.

2. The Plaintiff was an employee of the Defendant (“Toppan”) between 2 June 1997 and 25 October 2000. She was employed as an Account Manger in the Defendant's Data Management Services Sales Department (DMS) and assigned to work in team R at a basic monthly salary of HK$11,000. She was further paid a monthly travelling allowance of $300 and share in the sales commission and shipment bonus based on the performance of team R. On 1 January 1998, her basic monthly salary was increased to $11,350.

3. In this action, the Plaintiff claims she was unlawfully discriminated and victimised due to her pregnancy. She seeks damages under Section 76(3A)(b) & (f) of the Sex Discrimination Ordinance (SDO) for injury to feelings and loss of income and punitive or exemplary damages. She also asks for a written apology from the Defendant for the discriminatory acts against her and the injury to her feelings caused. She further seeks a truthful reference letter of her satisfactory performance while working at the Defendant's company.

4. The Plaintiff claims that the Defendant committed the following unlawful acts causing her to suffer loss and damage.

(a) Unlawful pregnancy discrimination under Section 8A and Section 11(2)(c) of the Sex Discrimination Ordinance and/or

(b) Unlawful discrimination by way of victimization under Section 9(1)(c) and (d) and Section 11(2)(c) of the SDO.

The Relevant Provisions of the Legislation

5. The relevant provisions of the SDO are as follows:

“8. Discrimination against pregnant women in employment field

A person discriminates against a woman in any circumstances relevant for the purpose of any provision of Part III or IV if –

(a) on the ground of her pregnancy he treats her less favourably than he treats or would treat a person who is not pregnant;

(b) he applied to her a requirement or condition which he applied or would apply to a person who is not pregnant but-

(i) which is such that the proportion of persons who are pregnant who can comply with it is considerably smaller than the proportion of persons who are not pregnant who can comply with it;

(ii) which he cannot show to be justifiable irrespective of whether or not the person to whom it is applied is pregnant; and

(iii) which is to her detriment because she cannot comply with it.

9. Discrimination by way of victimisation

(1) A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Ordinance if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised or any other person (“the third person”) has –

(a) brought proceedings against the discriminator or other person under this Ordinance;

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Ordinance;

(c) otherwise done anything under or by reference to this Ordinance in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Ordinance,or by reason that the discriminator knows the person victimised or the third person, as the case may be, intends to do any of those things, or suspects the person victimised or the third person, as the case may be, has done, or intends to do, any of them.

(2) Subsection (1) shall not apply to treatment of a person by reason of any allegation made by him

if the allegation was false and not made in good faith.

11. Discrimination against applicants and employees

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Hong Kong, to discriminate against her –

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them;

(b) in the terms of employment he affords her; or

(c) by dismissing her, or subjecting her to any other detriment.”

6. In order to prove pregnancy discrimination, the Plaintiff has to show she was treated less favourably by being dismissed because of her pregnancy when compared to an employee who is not pregnant. For discrimination by way of victimization, the Plaintiff has to show that she was treated less favourably and was dismissed by reason that the Plaintiff alleged that the Defendant had committed an unlawful act which would contravene the SDO. The law and the appropriate test to be applied under the law will be dealt with below.

The Plaintiff's Case

7. The Plaintiff, Ms. Janice Chan, was employed on 2 June 1997 as an Account Manager at team R of the Defendant's Data Management Services Sales Department (‘DMS'). Her monthly salary during probation was $10,000. She was entitled to a guarantee monthly commission of $4,000 or sales commission/bonus whichever was higher. She passed her probation after 4 months on 2 October 1997. Her monthly salary was increased to $11,000 with a travelling allowance of $300. Instead of a guarantee commission/bonus, she became eligible for a share of the sale commission and shipment bonus, her share percentage was subject to the agreement between Toppan and the staff. She claimed that this bonus was a major part of her income and was directly linked to the monthly sales and shipment volume i.e. value of goods delivered to clients of the whole team. Each team was assigned a list of clients to serve, a monthly sales and shipment budget and actual sales would be prepared by the team and the team's commission and bonus would be based on the actual sales and shipment by Toppan attributed to each team.

8. While at team R, Ms. Chan worked under the supervision of the senior Account Manager Mr Alan Mok who worked under Mr Caric Lee, the Sales Manager of DMS. DMS was headed by the General Manager, Mr Johnson Chiu (‘Mr Chiu').

9. It is Ms Chan's case that Toppan had assigned to team R a number of important corporate clients with whom it had a well-established business relationship with high annual business turnover such as Aeon Credit Services (Asia) Co. Ltd., Citibank, Kumon Hong Kong Co. Ltd. (“Kumon”), and Crocodile Garments Ltd. (“Crocodile”). Ms Chan was recruited by the Defendant to look after the accounts of these valued customers and to follow up their orders. It was part of her duties to liaise with these clients and with Toppan's own production department to facilitate and process clients' orders.

10. Ms Chan claimed that at team R she supervised and was assisted by account executives in the handling of small accounts and minor office routine. Ms Chan insisted that the account executives were responsible for making cold calls and visits to explore new business opportunities with potential clients and such were not the duties of the Account Managers.

11. Ms. Chan claimed that her performance as an account manager at team R was good. At the end of 1997, she was selected as a member of Toppan's Achievement Club that gave her an opportunity to visit Japan and Toppan's parent company in April 1998. She was selected to be the master of ceremony at a function to celebrate Toppan's 25th anniversary in Hong Kong in 1998.

12. Ms. Chan claimed that after she became pregnant, Toppan's management staff began an orchestrated course of conduct making the work environment difficult and unfavourable for her, that the unfavourable treatment constituted unlawful discrimination and/or victimization on the ground of her pregnancy. Such course of conduct is revealed by the following facts.

First Pregnancy

13. In May 1998, she became pregnant and informed Mr Caric Lee (“Mr Lee”) in mid-May of the pregnancy. Mr Lee began to pick on her for meeting clients before coming to the office in the morning. She claimed that this was a common practice in the DMS and that she had never been criticised for it before she told Mr Lee of her pregnancy. She also claimed at that time, other employees of DMS were not picked on in the same way.

14. Ms Chan had a difficult pregnancy, she was admitted into hospital for pregnancy complications between 12 and 18 May 1998. At the end of May, she had a miscarriage and underwent an operation in the hospital for which she was put on sick leave from 25 May to 6 June 1998.

15. Upon her return to work, Mr Johnson Chiu made a remark to her to the effect that “since childbearing was so difficult, she should spend her time on working hard instead of wasting time on it”. She was hurt and upset by the remark.

Second Pregnancy

16. At the end of November 1998, she became pregnant again. She duly notified Mr Caric Lee of her pregnancy in the latter part of November 1998 and took her annual leave between 30 November and 2 December 1998 on the advice of the Chinese herbalist. She informed Lee in late December that it was not suitable for her due to her...

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