October 2002, the Defendants terminated him. They argued that his dismissal was due to his breach of contractual obligations. The Court ruled that the

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Disabled Employee: To Dismiss or Not to Dismiss Can an injured employee be terminated because he can no longer, as a result of injury suffered, perform all the duties required of him?

1 Disabled Employee: To Dismiss or Not to Dismiss Can an injured employee be terminated because he can no longer, as a result of injury suffered, perform all the duties required of him? In this article, we examine the key issues to consider prior to taking any action or decision concerning the dismissal of disabled employees. Take for example a driver who is employed to drive and to load and unload goods. He has been medically advised to avoid heavy manual lifting as a result of back pain but is still fit to drive. Under these circumstances, if an employer dismisses the driver outright, this may amount to disability discrimination. The Disability Discrimination Ordinance ( DDO ) makes it an offence to discriminate against a person with disability by, inter alia, dismissing that person, or subjecting him to any other detriment, unless one of two exceptions apply. Disability is defined to include all bodily malfunctions, malformation or disfigurement, whether presently or previously existing, or which may exist in the future. Discrimination can be direct or indirect. Direct Discrimination means where an employer treats a disabled person less favorably than he would treat someone without a disability; by Kelly Wong Indirect Discrimination means where an employer either: (i) imposes on a disabled person a requirement or condition that a disabled person is less likely to be able to meet, compared to someone without a disability, or (ii) imposes a requirement or condition which (a) would be unjustifiable even if imposed on someone without a disability, and (b) is imposed on the disabled person to his detriment because he cannot comply with it. The following two judgments illustrate the application of the DDO. The recent case of Ip Kai Sang v Federal Elite Limited (date of judgment: 7 March 2008) concerns the dismissal of a waiter who was suffering from a wrist injury. The facts are; In January 2005, the Defendant appraised Ip s performance to be satisfactory and also awarded him a bonus. On 18 May 2005, Ip injured his wrist and was provided medical sick leave for nine days. He returned to work on 27 May 2005, wearing a wrist brace. At the end of that working day, he was terminated with immediate effect and was given seven days wages in lieu of notice. No reason for termination was given. Ip claimed he was discriminated because of his wrist injury. The Defendant denied the allegation but alleged that it terminated Ip due to unsatisfactory performance between January and April At trial, the Defendant failed to prove poor performance on Ip s part. Evidence also revealed that the Defendant was fully aware, at the time of termination, that Ip s injury was not yet fully recovered as he was wearing a wrist brace and this, according to the Defendant s policy, was not permitted for hygienic reason. In fact, the Defendant decided that Ip should be terminated if he could not return to work as a waiter. The trial judge ruled that Ip was treated unfavorably as compared to the treatment of staff not suffering from wrist injury. The Court was also satisfied that but for the injury, Ip would not have been terminated. The Court added that the lack of intention to discriminate is not a necessary condition of liability, though it may be relevant to remedies. The second case, Siu Kai Yuen v Maria College (date of judgment: 18 April 2005) concerns a teacher suffering from cancer. In 2002, the Plaintiff was diagnosed as suffering from rectal cancer. He applied for sick leave and told the Defendants that he would undergo an operation in August He informed the Defendants that he could resume duties on 1 November In late j u n e

2 October 2002, the Defendants terminated him. They argued that his dismissal was due to his breach of contractual obligations. The Court ruled that the Defendants had committed an act of disability discrimination by dismissing the Plaintiff. In determining whether the Plaintiff had been treated less favorably than those who did not have a disability, the judge held that the Court ought to compare the Plaintiff with another teacher who was not disabled, but taking leave for other reasons such as maternity. The judge concluded that because a teacher without the disability would not have been dismissed for breach of their contractual obligations, the Plaintiff s dismissal amounted to less favorable treatment. Discrimination exceptions The DDO exempts employment discrimination from being unlawful if it falls within two criteria, namely genuine occupational qualification and inherit requirements. The burden of proving that the exceptions apply is on the employer. Genuine occupational qualification A person without a disability will be a genuine occupational qualification where: (1) the nature of the job would be materially different if it were carried 38 j u n e out by a person with a disability; or (2) if the nature or location of the job makes it impractical for the holder of the job to live elsewhere and the only such premises which are available for persons holding that kind of job are not equipped with accommodation and facilities for persons with a disability, and altering those premises to be so equipped would impose an unjustifiable hardship on the employer. Inherent requirements This simply means an essential requirement of the employment and that the purpose of the job should also be taken into consideration. (Qantas Airways Ltd v Christie (1998) (High Court of Australia). Reasonable accommodation Should the above two exceptions apply, an employer is still required to make reasonable accommodation for a disabled employee unless doing so would cause unjustifiable hardship. Reasonable accommodation includes: changes and alterations made in the workplace to ensure that facilities and areas of the workplace are accessible to the disabled employee; changes to job design, work schedules or other work practices to ensure that disabled employees are able to fulfil the requirements of the job; provision or modification of facilities and equipment in the workplace to enable ease and efficient use by the disabled employee; provision of further training for disabled employees as required; and reviewing personnel changes in the workplace and offering alternative positions in the establishment to a disabled employee in order to enable them to continue to work. In determining whether there is unjustifiable hardship, the courts will consider both the advantages and disadvantages of making any accommodation for the disabled employee. They will make allowance for the effect of such accommodation on the disabled employee, the financial circumstances (for instance, the considerable expenditure and/or recurrent expenditure that will have to be undertaken by the company) and the burden on the employer of providing such accommodation. It is up to the employer to prove hardship when running this defence.

3 The above points are illustrated in a decision by the House of Lords. In the case of Archibald v Fife Council, A was employed as a road sweeper and as a result of surgery complications, was no longer able to walk and therefore unable to carry out her job. However, she was assessed as being able to carry out sedentary work. A applied for over 100 office posts (which were of higher grade) but failed to obtain any of them. Eventually she was dismissed on the ground of incapacity. The Defendant argued that the duty to make reasonable accommodation could not arise when the disability meant that the employee could not do the job at all and there was no adjustment to the arrangements for that job which could make any difference. The House of Lords held that: The employer is obliged to take such steps as are reasonable, in all the circumstances of the case, to prevent any arrangements made by or on its behalf placing a disabled person at a substantial disadvantage. This duty is triggered when an employee becomes so disabled that they can no longer meet the requirements of their job description; The employer ought to have considered transferring A to another post, either at the same, higher, or lower grade. It is not enough just to allow her to apply or short-listing or considering them for an existing vacancy. To the extent that the duty to make reasonable adjustments requires it, an employer is not only permitted but is positively obliged to treat a disabled person more favourably than others. In this case, where there was no equal or lower grade job to which the employee could be moved, transferring A to a sedentary position that she was qualified to fill was one of the steps which the defendant might reasonably have taken when A could no longer walk and sweep. Her appeal was therefore allowed. Applying Archibald In our driver scenario, the main questions will be: Whether being physically fit is a genuine occupational requirement; If yes, can the employer make reasonable accommodation for the employee; Whether there is another post suitable. Being physically fit is probably a genuine occupational requirement. Unlike its UK counterpart (the Disability Discrimination Act), the DDO does not make explicit the duty on employers to take reasonable steps to prevent employers making arrangements that place a disabled person at a substantial disadvantage. However, if the driver in our case can fulfil the inherent requirements of the job with adjustments, such as by deploying another worker to assist him with loading/unloading of goods, the employer must make necessary accommodation to support the employee, unless such accommodation imposes an unjustifiable hardship on the employer. The employer should also consider whether there is another post, which may be suitable for him, taking into account his experience, qualification and training. Only has the employer taken the aforementioned steps should it consider dismissing him. Suggestions To minimise the risk of being accused of wrongful dismissal and disability discrimination, an employer should consider the following: Do not dismiss an employee during sick leave; Ensure that dismissal procedures are adequate and justifiably put into place; Consider the ways in which the company can (both now and in the future) accommodate disabled employees, in terms of providing adequate facilities and equipment to enable them to do their job; Be prepared to offer alternative employment to a disabled employee whose incapacity renders them unable to perform their original job, and ensure that a disabled employee has the opportunity to apply for an alternative post in the organization; When dismissing an employee, explain clearly the grounds on which they are being dismissed. If performance has all along been an issue, record that in writing and give written warning before termination. Kelly Wong Partner Kennedys j u n e

4 法律新知能否解僱殘疾僱員? by Kelly Wong 倘若僱員因受傷不能再履行自己的全部必要職責, 可否因此解僱受傷僱員? 在本文中, 我們將探討作出解僱殘疾僱員的相關行動或決定前所須考慮的關鍵問題舉例說, 某個司機受僱駕駛車輛, 裝卸貨物他因背痛得醫生建議避免搬運重物, 但駕車仍舊適合在上述情形中, 僱主如簡單地解僱該名司機, 可能會構成殘疾歧視殘疾歧視條例規定, 除非出現兩種例外情況之一, 任何人如針對某人的殘疾而作出解僱, 或使其陷於任何其他不利情況, 則構成罪行殘疾指身體的任何部分的機能失常畸形或毀損, 不論是現存的殘疾曾經存在的殘疾, 或者在將來可能存在的殘疾歧視可以是直接或間接的直接歧視指僱主給予殘疾人士的待遇差於他給予非殘疾人士的待遇 ; 間接歧視則意味著僱主 : (i) 向殘疾人士施加的要求或條件, 但與非殘疾人士相比, 殘疾人士不大可能符合該項要求或條件, 或者 (ii) 施加的要求或條件,(a) 即使施加於非殘疾人士身上亦屬不合理, 以及 (b) 施加於殘疾人士身上使他陷於不利情況, 因為他不能符合該項要求或條件下文兩宗判決通過實例說明殘疾歧視條例的應用 40 j u n e 近期 Ip Kai Sang v Federal Elite Limited 一案 ( 判決日期 :2008 年 3 月 7 日 ) 涉及解僱患有腰傷的侍應案情如下 : 2005 年 1 月, 被告人評定 Ip 的工作表現為滿意, 並且向他發放花紅 2005 年 5 月 18 日, Ip 腰部受傷, 放了 9 天病假他於 2005 年 5 月 27 日戴上護腰返工, 但當天工作完畢, 他遭即時解僱, 並獲給予 7 天工資的代通知金僱主沒有提供解僱理由 Ip 稱自己因腰傷而遭歧視被告人否認這項指稱, 並聲稱自己不滿 Ip 在 2005 年 1 月至 4 月期間的工作表現才解僱他在審訊中, 被告人未能證明 Ip 的工作表現欠佳另有證據顯示, 被告人在作出終止僱傭時完全意識到 Ip 的損傷尚未完全康復, 因為他仍戴上護腰工作而根據被告人的政策, 基於衞生理由這樣做是不允許的事實上, 被告人認定,Ip 無法回來再當侍應, 則應獲解僱主審法官裁定,Ip 與沒有腰傷的員工所得待遇相比,Ip 受到較差的待遇法院亦信納, 若不是腰傷,Ip 不會遭到解僱法院補充, 缺乏歧視的意圖並非承擔法律責任的必要條件, 儘管這可能與賠償有關第二宗案件 Siu Kai Yuen v Maria College( 判決日期 :2005 年 4 月 18 日 ), 涉及一名罹患癌症的教師 2002 年, 原告人被診斷患有直腸癌他取了病假, 並告知被告人自己於 2002 年 8 月動手術他通知被告人可以於 2002 年 11 月 1 日復工 2002 年 10 月尾, 被告人將其解僱被告人稱, 該名教師因違反合約義務而遭到解僱法院裁定, 被告人解僱原告人觸犯了殘疾歧視行為要確定原告人所得待遇是否比沒有殘疾的人士更差, 法官認為法院應當將原告人與另一名教師相比較, 該名教師並非殘疾但出於其他原因 ( 譬如產假 ) 而休假法官得出結論, 由於沒有身患殘疾的教師不會因違反合約義務而遭解僱, 原告人的解僱相當於給予較差待遇歧視的例外情況倘若合乎以下兩項標準, 殘疾歧視條例免除僱傭歧視構成非法行為, 這兩項標準是真正的職業資格及固有要求僱主有責任證明適用例外情況真正的職業資格在下列情況, 非殘疾人士具真正的職業資格 : (1) 假如由殘疾人士擔任, 該工作的性質便會出現重大差異 ; 或 (2) 如果工作的性質或地點, 導致擔任該工作的人不可能在其他地方居住, 而擔任該類工作的人所獲提供的僅有該等處所, 並無設有供殘疾人士使用的住宿及其他設施, 以及改動該處所使其設有該等設施, 對該僱主會造成不合理的困難固有要求它的簡單含義指受僱工作的必需要求, 並且應當考慮到工作的目的

5 法律新知 (Qantas Airways Ltd v Christie (1998)) ( 澳洲高等法院 ) 合理便利即使適用上述兩項例外情況, 僱主仍需為殘疾僱員提供合理便利, 除非這樣做會導致不合理的困難合理便利包括 : 改變與改動工作場所, 以確保殘疾人士得以享用工作場所的設施和地方 ; 變更工作設計工作日程或其他工作常規, 以確保殘疾僱員能夠履行工作要求 ; 提供或改動工作場所的設施與設備, 以便殘疾僱員能夠方便有效地使用 ; 向殘疾僱員提供更多有需要的培訓 ; 以及檢討工作場所的人事變動, 向公司內的殘疾僱員提供其他職位, 以便他們能夠繼續工作要確定是否存在不合理的困難, 法院將考慮為殘疾僱員提供任何便利的利弊之處他們會酌情考慮該等便利對殘疾僱員的影響財務狀況 ( 譬如 : 公司須承擔高昂的費用及 / 或經常性支出 ), 以及提供該等便利對僱主的負擔僱主有責任進行這項抗辯時證明困難之處上議院的裁決表明上述觀點在 Archibald v Fife Council 一案中,A 受僱為道路清掃工, 但因外科手術併發症,A 無法再走路, 因而不能履行其工作然而, 經評估後, 她能夠從事辦公室工作於是, A 申請 100 多份辦公室職位 ( 這些職位級別更高 ), 但未有獲任何一份工作錄用最終, 她因能力不足而遭解僱被告人指出, 倘若殘疾指僱員完全無法履行工作, 並且調整該工作安排亦無濟於事, 便不會構成提供合理便利的責任上議院認為 : 僱主有義務在案件的所有情形下採取各種合理步驟, 避免自身或代其自身作出任何安排, 使殘疾人士處於實質的不利情況僱員因殘疾變得嚴重而無法再符合工作內容的要求, 便會觸發這項責任僱主應當考慮將 A 調往其他職位, 不論是相同級別較高級別, 還是較低級別只是允許她申請目前的空缺或將其列入面試名單或考慮其申請是不足夠的在某程度上對職責的要求作出合理調整, 僱主不僅允許, 並且很樂意給予殘疾人士較其他人士更優厚的待遇在本案中,A 不能再行走和清掃街道, 被告人無法將該僱員調往某個工作崗位 ( 不論是相同級別還是較低級別 ), 則將 A 調任至她可勝任的辦公室的工作, 是被告人原本可合理採取的步驟因此,A 被判上訴得直應用 Archibald 判例上文提及司機的情境, 主要問題會是 : 體質健康是否為真正的職業資格 ; 如果是, 僱主可否為僱員提供合理便利 ; 是否有其他合適的職位體質健康很可能是真正的職業要求跟英國對應法例 ( 殘疾歧視法案 ) 不同, 殘疾歧視條例並未明文規定僱主必須採取合理步驟, 以防僱主作出使殘疾人士處於非常不利情況的安排但是, 如果本案中的司機經調動 ( 譬如安排另一名工人協助他裝卸貨物 ) 後得以符合工作的固有要求, 則僱主必須提供必要的便利支持該僱員, 除非該等便利會給僱主帶來不合理的困難僱主還應考慮會否有適合該僱員出任的職位, 同時考慮到其經驗資歷與訓練僱主只有採取上述措施後, 才應考慮是否解僱他建議為儘量減低被指不當解僱及殘疾歧視的風險, 僱主應考慮下列事項 : 不得解僱病假中的僱員確保解僱過程是充分的, 並合理地施行考慮公司能夠目前和今後在提供充足設施和設備方面, 為殘疾僱員提供何種便利, 以便他們可以從事自身的工作為殘疾而無法從事原先工作的殘疾僱員提供其他受僱工作做好準備, 並確保殘疾僱員有機會在組織內申請其他職位在解僱僱員時, 清楚解釋解僱理由如果工作表現一直是個問題, 便要把問題書面記錄, 並在解僱前提出書面警告 Kelly Wong 合夥人 Kennedys j u n e

東吳大學

東吳大學律律論論療行 The Study on Medical Practice and Coercion 林年律律論論療行 The Study on Medical Practice and Coercion 林年 i 讀臨療留館讀臨律六礪讀不冷療臨年裡歷練禮更老林了更臨不吝麗老劉老論諸見了年金歷了年