Should Ah-Wong be dismissed because of his illness?

Article contributed by
special arrangement with the
Equal Opportunities Commission.

"I started working as a storekeeper in this company in early 1994. Due to regular lifting of heavy objects at work, I developed a shoulder pain. I started to receive medical treatment in late 1994. At that time, my employer was very generous and once advanced a salary loan to me to pay for my surgical fees.

In late 1998, my shoulder pain came back again. My immediate supervisor warned me that my sick-leave would mean that the whole department would be understaffed. He eventually suggested that I resign. In mid-1999, I was dismissed and given salary in lieu of notice. I believe that I was fired because of my illness."

The Equal Opportunities Commission (EOC) investigators looked into the complaint and sought information from the employer. The company disagreed with the accusation of discrimination. The supervisor said Ah-Wong had never been refused sick-leave. He quoted cases when workers who took extended sick leaves were still employed by the company.

The supervisor said that Ah-Wong was fired due to his continuous negligence in carrying out his duties. However, the company could not provide evidence to prove Ah-Wong's poor work performance. The supervisor insisted that it was a lawful dismissal as Ah-Wong had been fully compensated under the Employment Ordinance.

After a series of negotiations and explanations supported by the advice of the company's in-house lawyer, the supervisor eventually realized that the Disability Discrimination Ordinance (DDO) was a separate piece of legislation giving protection to disabled employees. The employer subsequently agreed to settle the case with a monetary compensation.

Under the DDO, it is unlawful to discriminate against a person in the area of employment on the grounds of disability. It is therefore unlawful for the company to dismiss Ah-Wong on the grounds of his illness.

(Update: The case of Ip Kai Sang v Federal Elite Limited (2008) held that the Defendant had been directly discriminated against under s.6(a) of the DDO, since he would not have been dismissed but for his wrist injury.)

The DDO aims at eliminating discrimination in employment and is different from the Employment Ordinance. Employers often have the wrong impression, and think that as long as full compensation is given (e.g. payment in lieu of notice), they can dismiss an employee with prolonged illness any time. But this may lead to a breach of the DDO, which prohibits discrimination in the workplace on the grounds of disability.

Q & A about the Disability Discrimination Ordinance
Q1 I was diagnosed with a serious illness so I need to see a doctor regularly. My supervisor has since commented on my sick-leave record, and the inconvenience caused to my colleagues during my absence. Just a month ago, I was hospitalized for a few weeks due to my worsening health. When I returned to work, I was dismissed on the basis that I had taken too many sick-leaves. Is it unlawful for my employer to dismiss me because I suffer from a chronic illness and therefore require regular medical treatment?
A1 When a serious illness prevents an employee from performing the inherent requirements of the job, the DDO permits the employer to terminate the employment. However, the law requires an employer to consider providing reasonable accommodation (e.g. allowing time-off for medical treatment) to an existing employee with a disability, to enable him/her to perform the inherent requirements of the job. If the employer dismisses the employee without making those accommodations, the employer might be in breach of the DDO. But if an employer experiences unjustifiable hardship in providing such accommodation, the employer could claim exemption under the DDO.

Q2 An applicant satisfying all our requirements took a pre-employment medical check-up and we found that he had an infectious disease. Is it unlawful to refuse his appointment on the basis of his illness? Is the company obliged to wait until the person gets well?
A2 It is not unlawful to discriminate against an employee who has an infectious disease if the discriminatory act is reasonable and necessary for the protection of public health. However, employers should bear in mind that even if an applicant is found to have infectious disease, it does not mean that employers may reject the applicant straight away. Most of the infectious diseases, such as tuberculosis, would be cured after proper treatment. Therefore, if the applicant satisfies all requirements for the job, the employer could offer him the position subject to his recovery from the illness. It is the requirement of the law not to discriminate against a person because of his/her illness. However, if an employer actually requires someone who can commence employment immediately, not months later, there is no obligation on that employer to wait for months if that employer can justify why he/she needs someone who can start work immediately.

Source : The Equal Opportunities Commission

Taken from Career Times 07 June 2002

(Last review date: 23 August 2013)

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