Chok Kin Ming v Equal Opportunities Commission

HCLA 42/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 42 OF 2015

(ON APPEAL FROM LBTC 543 OF 2015)

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J U D G M E N T

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I. INTRODUCTION

1. This is an appeal in point of law brought by the Equal Opportunity Commission as the employer of Mr Chok Kin Ming against a decision of the Labour Tribunal. The Commission contends that the Tribunal was wrong to order it to pay Mr Chok his contract‑end gratuity in the amount of $867,021.25. The proceedings have arisen from a dispute concerning what Mr Chok said and did at a forum organised by a church on 16 August 2014.

2. The questions of law raised are: (i) whether, as a matter of construction, the contract of employment entitled the Commission to take into account the work performance of Mr Chok in deciding whether to pay him the gratuity; and (ii) whether the Tribunal failed to apply the correct legal test in ruling that the Commission wrongfully failed to pay the gratuity. There is a consequential issue of what the proper relief is if the Commission prevails on the two questions of law.

II. BACKGROUND

Conditions of employment

3. Mr Chok began his employment with the Commission in 1996. The last renewal of his contract with the Commission was for 3 years from 1 November 2011 to 31 October 2014 as a Chief Equal Opportunities Officer. The contract incorporated the terms contained in a document called “Memorandum on Conditions of Service in the Equal Opportunity Commission Office” (which I shall refer to as the “Conditions of Service”).

4. The letter to Mr Chok of July 2011 offering the appointment stated, among other things:

“Subject to the terms as set out in the attached [Conditions of Service], you will receive a gratuity for the period of service upon satisfactory completion of the agreement in the opinion of the EOC. ... The gratuity payable for the agreement will be the sum which, when added to the EOC’s contribution to the said MPF Scheme, equals 25% of the total basic salary of substantive office drawn during the period. ...”

5. Clause 13 of the Conditions of Service is important for present purposes as it governed the payment of the contract‑end gratuity. It read as follows:

“13. GRATUITY

13.1 On satisfactory completion of the agreement in the opinion of the employer, or if the agreement is terminated under Clause 11.3 of this Memorandum for reasons other than misconduct, the employee will receive a gratuity in respect of the actual period of service, including periods of vacation leave earned and taken. Such gratuity will be payable at a rate as specified in the letter of appointment.

13.2 The rate of gratuity referred to in paragraph 13.1 above may be reviewed and adjusted to take into account the contributions made by the employer in respect of the employee to a scheme registered under the Mandatory Provident Fund Schemes Ordinance.

13.3 Gratuity will not be payable to an employee who resigns and leave the office within the agreement period.

13.4 The employer may withhold the grand of gratuity while the employee is being subject to any disciplinary or criminal proceedings or investigation into any acts which may affect the grant of gratuity.

13.5 In circumstance where a gratuity is paid to the employee in the mistaken belief that he/she has:

(a) satisfactorily completed his/her agreement; or

(b) not been convicted of any of the following offences during and in respect of his/her employment-

(i) any offence under the Prevention of Bribery Ordinance (Cap 201), being an offence related to his/her previous service with the Commission; or

(ii) any other offence that if determined on its own fact, would have led to the employee’s dismissal from the service

the employer shall be entitled, without affecting its other rights, to recover from the employee the whole or part of the gratuity commensurate with all the circumstances of the case including the unsatisfactory nature of the employee’s service and the seriousness of the offence on his/her part. Such right of the employer shall survive any termination of the agreement between the employer and the employee.

13.6 In the event of the employee’s death during the agreement period, the amount of gratuity earned on the basis of Clause 13.1 above will be paid to his/her nominated beneficiar(ies) and in the absence of which to his/her estate.”

6. It is not in dispute that an employees’ code of conduct (“Code of Conduct”), contained in the Human Resources Manual, applied to Mr Chok in relation to his employment. Section D1.4 concerning conflicts of interests provided as follows:

“D1.4.1 All employees have an obligation to avoid financial, business or other relationships which might conflict with legitimate business interests of the EOC on the proper performance of its functions and powers. Employees must also avoid even a perceived conflict between their personal interests and those of the EOC.

D1.4.2 A conflict of interest situation arises when the personal interest of an employee competes or conflicts with the interest(s) of the EOC. Such a conflict will exist where an employee compromises his/her ability to act with total objectivity with regard to the Commission’s business interest or the proper performance of its functions and powers. Conflicts of interest may lead to divided loyalty and, in their most serious form, could result in corruption or fraud.

D1.4.3 Examples of conflicts of interest include, but are not limited to, the following:

...

• where an employee is involved in any activity outside the EOC which is in direct opposition to the work of the EOC (eg: anti‑gay/vilification of AIDS sufferers activist);

...

D1.4.4 It is the responsibility of every employee to report to his/her supervisor in situations where conflicts of interest may arise or have arisen, and make full disclosure of the interest of the employee (Form D1–D1.4.4refers). Failure to do so may give rise to criticism of favouritism, abuse of authority or even allegations of corruption.

D1.4.5 The supervisor should decide, in consultation with the relevant division/unit head or the Chairperson as applicable, whether the employee may deal with, or continue to deal with, the case on situation where the conflict of interest has arisen.”

The DLR consultation

7. Towards the end of Mr Chok’s employment, the Commission was conducting a 3‑month public consultation on discrimination law review (“DLR”), to be concluded on 7 October 2014. Mr Chok, who had volunteered to join the team, was one of the key members of the Commission’s taskforce on the DLR. The DLR was a major exercise intended to be a comprehensive review of all the existing discrimination laws to consider how they could be modernised to meet the society’s needs. It started in late 2012 and consisted of 5 phases. Public consultation was the second phase, following an internal review by the Commission and to be followed by an assessment of all the submissions and views received during the public consultation, drafting submissions and recommendations to the Government, and advising the Government on how the recommendations could be implemented.

8. A total of 77 questions were posed to the public in the consultation document. There are 6 questions of particular relevance here because on Mr Chok’s own case, they are questions to which he suggested the participants at the forum give a particular response in the consultation:

“6. Do you think that the protected characteristic of marital status should be amended to apply to “relationship status” and expressly protect persons in de facto relationships? If so, how should de facto relationships be defined? Should it be defined to include protection for both heterosexual relationships and same‑sex relationships? Should this also be extended to protection from discrimination relating to former de facto relationships?

...

8. Do you think that the protected characteristic of family status should be redefined as “family responsibilities” in order to clarify that it relates to persons who have responsibility for the care of immediate family members?

9. Do you think that the scope of family status discrimination should be expanded to include protection where persons in de facto relationships care for immediate family members? If so, how should de facto relationships be defined? Further, do you think the protection should be extended to situations where a person cares for an immediate family member from a former marriage or de facto relationship?

...

69. Do you think that the exception permitting sex discrimination in employment and qualification bodies for religious purposes should be extended to permit marital status discrimination?

...

71. Do you think that:

- the Human Reproductive Technology Ordinance should be amended to remove a requirement that a person is married to be provided with IVF treatment; and

- the exception in the SDO relating to reproductive technology should then be repealed?

72. Do you think that the exception relating to adoption and marital status is no longer necessary because of amendments to the Adoption Ordinance and should be repealed?”

9. According to the Commission, its role in canvassing the views of the public in the DLR consultation was to be impartial. Mr Chok was responsible for explaining the objectives and proposals...