A Hong Kong court has dismissed a HK$580,000 (US$74,230) claim against a domestic helper’s employer after finding insufficient evidence she had mistreated and fired the worker over her cancer diagnosis.
The District Court ruled on Monday that housewife Rita Choy Chiu-yee had displayed a “less than welcomed” and occasionally hostile attitude towards the late Joan Sarmiento Guting in the months leading to the termination of the helper’s contract in April 2017.
Judge Grace Chow Chiu-man highlighted in her 83-page judgment that Choy had repeatedly described the plaintiff as an “evil spirit” or “god of illness” in various text messages to her family.
The judge also noted a text exchange where the defendant, who is a Christian, praised God and claimed an “angel suddenly descended from heaven” to let her know about “the devil’s scheme and some method for treatment” after a hospital worker discussed Guting’s health with her.
But Chow stressed that enmity alone did not constitute sufficient grounds for establishing a claim of unlawful discrimination and harassment.
She highlighted difficulties in endorsing Guting’s account of events due to her absence from the trial early this year after her death in August 2018.
The court instead found it likely the helper could have been fired due to her unsatisfactory performance at work and the family’s complaints about her alleged inappropriate conduct in the household.
“Simply being mean, making demeaning and abusive remarks or false accusations, or abusive acts, if not connected to the employee’s disability, does not constitute harassment,” the judge wrote.
A separate claim of unlawful termination of employment was also rejected on the grounds that the helper was not sacked during her sick leave.
Guting was diagnosed with cervical cancer, oedema – a build-up of fluid in the body’s tissue – and acute renal failure on March 5, 2017. She died at the age of 41 after returning to her native Philippines.
She lodged a complaint of disability discrimination with the Equal Opportunities Commission in May that year, but the investigation was discontinued five months later.
A subsequent claim of unlawful dismissal filed at the Labour Tribunal was indefinitely adjourned due to Guting’s worsening health.
Her friend, Carla Arangote Temporosa, filed a posthumous discrimination lawsuit against Choy in 2019 and restored the suspended proceedings at the tribunal a year thereafter.
Temporosa alleged Choy had refused face-to-face communications with Guting, denied her access to sufficient food, monitored her through a security camera and threw away utensils she used.
Without Guting’s court testimony, the plaintiff’s counsel built its case on a few old statements the late helper made to the commission, as well as hearsay evidence from her friends, which the court found to be unreliable.
Instead, Judge Chow said Choy’s claim about Guting’s subpar performance was supported by messaging records between them, which suggested the helper had either ignored the employer’s orders or neglected her duties since her employment in January 2015.
Chow found the trigger for Guting’s dismissal to be the discovery of allegedly indecent pictures the helper took at the family’s residence and uploaded on social media in February 2017.
The images, which showed the helper’s shoulders and much of her chest, were described by the defendant as “seductive”, although the judge expressed reservations about the characterisation.
The judge accepted Choy’s explanation that she deferred Guting’s dismissal until April that year because of a family trip and the helper’s illness.
She added the defendant had also taken active steps to avoid breaching the law by consulting the Labour Department before firing Guting, which took place before she came to know about the helper’s cancer diagnosis.
