The latest case of disability discrimination confirms that it is unlawful for employers to dismiss an employee on the ground of his/her disability.

The Judgment
The District Court ruled on 7 March 2008 that the defendant had unlawfully discriminated against its former waiter because of his disability when he was working in the defendant's Chinese restaurant. The defendant was ordered to compensate damages to the plaintiff at HK$94,545 for injuries to feelings and loss of income.

The Case
The plaintiff had worked at the restaurant since 1 July 2004. There was never any verbal or written complaint from customers against him. His performance was rated as satisfactory and he received bonus payment. He injured his right wrist in May 2005 and produced medical certificates to take 9 sick days. When he returned to work even though his right wrist had not completely healed, the restaurant manager told him his employment contract would be terminated the next day. He was given 7 days' wages in lieu of notice but no reason for his dismissal. The manager said the plaintiff had not been dismissed for his wrist injury but because of his poor performance. He further alleged that during rush hours, the former waiter had failed to clean tables even though customers were waiting to be seated. The manager also said he received one complaint from another employee against the plaintiff that he was found playing video games and making phone calls in the toilet during busy periods. However, the manager did not witness such behavior. The plaintiff, on the contrary, claimed that the toilet cubicles were small and smelly, and it is impossible for him to have stayed in the toilet cubicles for long.

The defendant could not satisfy the court by proving the plaintiff was guilty of misconduct, and the decision to terminate him was made because he had a disability, since the defendant thought that he was unable to wait on tables as he had not fully recovered from his injury. The Court ruled that his dismissal was unexpected and unfair.

Conclusion
The case made it clear that it is wrongful for employers to dismiss employees on the ground of their disabilities. Employers should be mindful that employees who are sick or injured are entitled to protection under the Disability Discrimination Ordinance. The EOC urges all employers to adopt an equal employment opportunities policy for eliminating discrimination at work.

Source: Equal Opportunities Commission