CASE UPDATE
In a recent judgment WONG CHAK MING by his natural sister and next friend, WONG CHAK YING 對 張記環保有限公司 [2024] HKDC 719, the Court ruled that the defendant, a HK cleaning company, had for years exploited the mentally disabled plaintiff employee (who our member Mark Leung represented in trial), and made a finding of constructive dismissal against the defendant, and awarded the unpaid overtime wages and daily allowance to the plaintiff.
The Court also ruled in favour of the plaintiff that the defendant company owed a positive duty to inquire and duty to accommodate the plaintiff, including taking appropriate measures so that the plaintiff employee would not be exploited or be deprived of his interest due to his mental disability. The Court further ruled that there was ample evidence in the present case the defendant knew about the mental disability of the plaintiff without taking any measures to protect him from being exploited or deprived of his interests. Such act, among other breaches of the Employment Ordinance and/or employment contract, amounted to serious breach of implied term of mutual trust and confidence between an employer and employee.
The following excerpts of the judgment shed light on the employer’s duty owed to a mentally disabled employee:
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50. 原告人在其申索陳述書亦主張被告人對原告人負有詢問責任 (duty to inquire) 和提供適當照顧責任 (duty to accommodate)，包括提供適當措施讓原告人不會因其殘障而在工作期間被利用或被剝奪其僱員福利。
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52. 本席認為本案有充份證據顯示被告人對原告人的殘障知情（見上文第21(1)及22(4)段），但卻沒有採取任何合理措施保障原告人不會因其殘障而在工作期間被利用或被剝奪其僱員福利
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57. 基於以上原因，本席在相對可能性下認為被告人很大可能因原告人的殘障（包括其精神和語言障礙）而剝奪其在該條例下享有的休息日和休息日的指定，從而令其失去法定的僱員福利，此舉嚴重違反僱傭雙方互信的隱含條款，原告人亦因此可在知悉引致違約的事實及其法律權利後根據普通法無須給予被告人通知而終止該合約。
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Full judgment of the case can be found HERE.