12 January 2012
In order not to deter potential victims from enforcing their rights, the law requires each party to bear his own costs in court proceedings brought under the anti-discrimination ordinances unless the proceedings were brought maliciously or frivolously, or there are special circumstances which warrant an award of costs. In the recent case of Chan Wai Ho v Civil Service Bureau DCEO7/2010, the District Court exercised its discretion to order costs against a plaintiff for bringing a frivolous claim. In making the award, the Judge said he would like to discourage abuse of the discrimination ordinances for determination of employment matters.
The case involved an assistant clerical officer (P) working in the Civil Service Bureau (CSB), who was ordered to retire in 2008 under Order 12 of the Public Service (Administration) Order. P suffered from asthma and had, between 2004 and 2008, taken 61 days of sick leave. P claimed that he had been treated unfairly due to his disability, namely, his asthma, in particular:-
- the Clerical Officer (CO) of the CSB prohibited him from applying for sick leave using sickness certificates issued by private clinics; and
- the CSB unreasonably rated his performance as "bad" or "of poor quality" in his performance evaluation.
P claimed damages for unlawful disability discrimination against the CSB and sought reinstatement to his former post.
The Court held that given P had complained to various institutions after receiving the CSB's warning letters, he had adequate opportunity to complain about the alleged unlawful discrimination or prohibition on the use of sick leave certificates from private clinics. Yet he did not do so. P failed in his claim relating to sick leave.
The Court gave four reasons why P's allegation relating to his performance evaluation should fail. Firstly, P's disability was not particularly severe and the number of sickness days taken was not excessive. Therefore, it would not be difficult for the employer to find a substitute for P when he was absent. Secondly, there was no evidence that showed that the employer had a policy of discrimination. Thirdly, the evidence showed that P did not have good inter-personal skills, which was one of the reasons that contributed to his poor performance evaluation. And finally, the decision made under Order 12 required a long procedure and involved many parties, rendering it unlikely that P was dismissed based on his disability.
The Court was of the opinion that if P was not ordered to pay cost, it would encourage the proliferation of unsubstantiated claims. As there was no objective evidence to support P's claim, the Court ruled that it was made frivolously and P was ordered to pay the CSB's cost.
In light of the above, complainants should consider carefully the potential costs consequences of pursuing a discrimination claim without reasonable grounds. Meanwhile, employers may be relieved to know that they are not entirely without redress in respect of costs in circumstances where they are faced with a frivolous discrimination claim made by an employee.
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