Ray Chen v Taramus Rus And Another

DCEO 2/99

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO.2 OF 1999

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JUDGMENT

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1. The plaintiff was employed by D2 as a senior Information Technology specialist between the period 18th, August, 1998 and 18th, December, 1998. D1 was employed by IBM Global Services Australia and assigned to work in Hong Kong between 23rd, September, 1998 and 27th, February, 1999 as the project manager of the Cathay Pacific outsourcing project (hereinafter called the CPA project). The present claim is taken out by the plaintiff against D1 under s. 23 of the Sex Discrimination Ordinance, CAP.480 (hereinafter referred to the SDO), and against D2 under s. 9 and s. 46 of the said Ordinance. The plaintiff alleges that he was sexually harassed by D1 during his employment with D2, and that D2 had discriminated against him by way of victimization, that is, dismissing him for his employment after he had made a sexual harassment allegation against D1.

2. The plaintiff claims:

(1) A declaration that D1 an D2 have unlawfully discriminated against him contrary to s. 6,23 and 46 of the SDO,

(2) A declaration that D2 has unlawfully victimised against him contrary to s.9 of the SDO,

(3) An order that D2 shall re-employ him,

(4) An order the D2 shall promote him,

(5) Damages including damages for injury to feelings pursuant to s. 76(6) and s.76(3A)(e) of the SDO,

(6) Punitive and/or exemplary damages,

(7) Interest,

(8) Costs, and

(9) Further and/or other relief.

3. D1 denies the allegations, and claims that she and the plaintiff had enjoyed an intimate, consensual, though brief personal relationship. D2 denies the allegation of victimization, and alleges that the plaintiff was dismissed for cause other than his lodging of complaints against D1 for sexual harassment. It is also the case of D2 that such complaints were only made by the plaintiff at the exit interview upon his dismissal. Nonetheless, D2 claims that they had discharged their duties as an employer and has instructed an investigator to carry out the necessary investigation in accordance with the company's guidelines even after the plaintiff's departure from their company.

4. In the present proceedings, D1 also applies for costs and damages against the plaintiff caused by the wrongful ex parte application of a Prohibition Order against her. The said order was granted by the court on the 1st, February, 1999, and was subsequently discharged on the 12th, February, 1999. In the application to discharge the said order, D1 alleged that there had been material non-disclosure on the part of the plaintiff in his ex parte application a result of which, she had suffered embarrassment, emotional distress, as well as financial loss of a deposit which she had paid in respect of a packaged tour to Beijing which was caused to be cancelled as a result of the Prohibition Order.

THE PLAINTIFF'S CASE

Allegations of sexual harassment by D1

5. The plaintiff joined D2 on 18th,August, 1998 and upon joining as team leader of the LAN administration team, he was told by his then reporting manager Dominic Wong that the major project he had to work on would be the CPA project. He said that he was told that he was not labelled as a manager yet although he was classified as a Band 8 staff. During the second week of his employment he was introduced to D1 who was the project manager of the CPA project. He found her domineering at that meeting. The plaintiff alleged that within a week of this first introduction to D1 and the latter D1 probed into his private life and made enquiries as to whether he had a girlfriend. The plaintiff said that this was a clear demonstration assertion of authority on the part of D1 which was the basis of sexual harassment.

6. In the month of September, 1998 there was nothing more than a business relationship between the plaintiff and D1. However, the plaintiff admitted that on 17th, September, 1998, he sent D1 a email calling her a "sweetie", and sent her a "*kiss*". On 5th, October, 1998, the plaintiff sent D1 another email which was copied to Nick Cook wherein he addressed her as "Tamara Baby". According to the plaintiff, this email which earned him a lecture from Mr Shevloff, his own reporting manager. Nonetheless, in an email dated the 19th, October, 1998, the plaintiff again took the initiative to call D1 "Tam", to which D1 replied on the same day, expressing her displeasure about him addressing her as "Tam". The plaintiff said that he was happy in learning that he had annoyed her.

7. The emails which the plaintiff alleges had sexual overtones only started after the team building exercise on 20th, October, 1998. The plaintiff sat next to D1 during dinner. The plaintiff denied any intimate conversation between them over dinner but said that the atmosphere was good. On the following day, D1 sent the plaintiff an email resenting that he left so early after dinner the previous day. She said that she was originally going to invite him to her place for coke or coffee. The plaintiff told the Court that he found this email offensive since he was familiar with the implication of these lines and he had finally confirmed his suspicion that D1 was making sexual advances at him. Nonetheless, the plaintiff replied to her email on the same day and the correspondence between them continued. The plaintiff denied that these emails were any kind of mutual flirtation and certainly not any extension of the friendly conversation between them on 20th, October, 1998. He said that he did so because he dared not be on the wrong side of D1 and he knew that she was the sort of person who would do everything to get what she wanted.

8. On 4th, November, 1998, D1 sent the plaintiff an email in which she poured out her heart to him. The plaintiff said that this email was so explicit that he could not play dumb anymore. He knew he had to come up with a solution which would not offend D1 because he knew that she was strong-willed and smart. As a result he still went with her and indeed bought her lunch on the 5th or 6th, November, 1998. That evening that D1 made arrangements for him to go to her flat on the 8th, the Sunday.

9. During this visit to D1's flat, he stayed until 11 pm. He said that D1 remarked that he looked sexy on a previous occasion in shorts. He said that he was embarrassed and affronted by such remarks. He also said that when he was leaving, she kissed him on the lips. Although he felt disgusted, he also felt fortunate that he managed to "leave in one piece". He went home and thought hard over the situation, and said that he had set a bottom line for himself that on no account would he have sex with D1. He hoped to deploy delaying tactics until 15th, February, 1999 when D1's contract in Hong Kong ran out.

10. On the following day, D1 wrote an email to the plaintiff referring to the kiss the previous night: "......hope I don't scare you off with that little kiss I sneaked in, sorry, I couldn't help myself." The plaintiff replied to this email on 11th, November, 1998: "Just relax and be yourself. You can't get wrong by doing that :) *kiss* ." In reply to this, D1 wrote on the same day: "I want a real *kiss*."

11. The fact that they had kissed each other at 20:20 hrs on 11th, November, was evidenced by the plaintiff's email dated 12th, Novmeber, 1998 to D1. D1 in the next email on the same day asked the plaintiff for more, to which P replied that he had "no problem with that :) *kisssssssssss*." According to the plaintiff that kiss was not the server room kiss, which happened in an afternoon when the new file server arrived. On that occasion he said that she asked him to take her to the server room under the pretext of looking at the new server, and then grabbed him by his waist and kissed him on his lips. He smelt garlic and felt repulsive.

12. In his email to D1 dated the 13th, November, 1998 (hereiafter referred to as the C233 email), he had referred to another incident in room 1701. The plaintiff said that Room 1701 was not the server room. It is worth setting out the C233 email in some detail:

"There are fears boiling inside of me when I am with you. Fear of uncertainty, mostly. However, all the fears in this world can not (sic) stop me from be close to you.................Like today, I had to muster all the self-control within me in order to act like a gentleman when we were in room 1701.:)"

13. The plaintiff admitted to have gone with D1 to a coffee shop in Taikoo place some 4 or 5 times after work. He alleged that she had kissed him on a number of those occasions.

14. On 14th, November, 1998 the plaintiff went to D1's flat again after they had gone to a colleague's home for barbeque. This time the plaintiff stayed until the following morning and went to church directly after leaving D1's flat. He said that during this visit D1 requested to see his chest, and he declined saying that he had stomach cramp. D1 had also suggested a body massage, but he turned it down. The plaintiff told the Court that on that occasion they were lying side by side with each other, talking about a wide range of topics. The plaintiff said that on that occasions D1 told him that she had bought condoms, but he told her that due to his own lifestyle and religious belief he had a low libido.

15. There was...