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| Joan's photo after being sacked in the wee hours touched the hearts of many |
A District Court judge has dismissed a disability discrimination case filed against the employer of a Filipina domestic helper who was terminated shortly after midnight on May 1, 2017, about two months after she was diagnosed with cancer and acute liver failure.
The helper,
Joan S. Guting, died in the Philippines in August 2018, and was substituted as
plaintiff in the case by her friend, Carla A.Temporosa.
In dismissing
the $580,000 suit, District Judge Grace Chow said that while the attitude of
employer, Rita Choy, towards Joan was less than welcomed and was even quite
hostile on occasions, they were not on account of her disability.
Judge Chow noted that Choy did call Joan names such as “evil spirit” in her family’s
group chats, but this happened even before she learned of the helper’s illness. She also pointed out that Choy also used offensive names when referring to her own husband and grown-up
son.
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| TAWAG NA! |
Citing prior
judgments, Judge Chow ruled that “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.”
Even Joan’s
dismissal in the wee hours of the morning while still attached to two drainage
bags on account of her kidney ailment did not seem to convince the judge that she
had been unfairly treated because of her disability.
The judge accepted Choy's submission that her family had decided to terminate Joan's employment about two weeks before her cancer
diagnosis, but did not act on it immediately as the employer and her husband were due
to go away on vacation.
Judge Wong
based her conclusion on WhatsApp messages among members of Choy’s family, in which
the decision to terminate Joan’s employment was firmed up on February 13, 2017 - before she was diagnosed with cervical cancer, renal failure and deep vein thrombosis on March 5 that year.
This decision
was reached after the family agreed that Joan had slackened shortly after her
contract was renewed in January that year, and was reinforced when they found the helper taking “sexy”
photos in their living room on February 12, prompting them to install
CCTV cameras in their living room.
This was contrary to the plaintiff's claim that Choy had done a number of hostile acts after learning of Joan’s
illness like not giving her any food, throwing away the pots and pans she had used
to cook, not allowing her to use the washing machine and not offering to move
her from her upper bunk bed despite her condition.
To bolster
the claims, three of her friends including Temporosa were presented as
witnesses. They all spoke of how Joan had to be supplied with food on a daily
basis because her employers did not feed her or allowed her to cook, and claimed to have been told that Choy had thrown away cooking utensils used by their friend.
But on cross
examination, all three witnesses admitted they did not directly witness the
acts Joan had complained about. As a result, the judge found their evidence
based on mere hearsay and were unreliable.
The judge
said she found “not a single contemporaneous record to support Joan’s complaint
about lack of food, not being allowed to use the washing machine, not being
allowed to cook in the kitchen or a request for alternative sleeping
arrangements was made.”
She also rejected the separate claim of unlawful termination on the basis that Joan was sacked while she was on sick leave.
Choy was in constant touch with staff of the Labour Department and was careful not to violate any law, so it was not likely that she fired the helper rashly, according to Judge Wong.
The judge
pointed out that Joan was covered by a sick leave certificate only until April
29, and the next day was her rest day and not sick day, as she even managed to
leave the house in the morning.
It did not
matter, said the judge, that Joan subsequently obtained a sick leave
certificate until May 1, as she was no longer employed by Choy by then.
Contrary to Joan’s claim, the judge said she was not thrown out of the house
in her sleepwear, and was forced into signing a document accepting her termination
and separation pay.
A video recording of the night in question showed Joan being allowed to change into street clothes and of her not showing any resistance to being asked to leave at the ungodly hour. She was even heard saying, “Thank you, maam,” while packing her stuff with help from Choy's husband and daughter.
No order as
to costs was made by the judge.
Joan was
represented in the case by Denise Souza, on instructions by Haldanes, while
Choy was defended by Chan Yip Hei, as instructed by Joseph M K Chan, Solicitors.
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