HK court clarifies when workplace changes qualify for compensation
A Hong Kong court recently addressed a workers' compensation claim related to a mental health incident. The case explored questions about workplace reassignments and their potential psychological impacts.
The worker claimed that being forced into a new role against his wishes caused mental injury. He argued that his employer disregarded his pre-existing health condition and made improper changes to his job duties that fell outside his employment contract.
After making repeated requests to be exempted from the new assignment, the worker's protest escalated dramatically when he threatened self-harm and displayed a banner at his workplace. This led to emergency services being called and the worker being taken to hospital, setting the stage for a legal battle that would continue for years.
The worker was employed as a foreman in the Food and Environmental Hygiene Department (FEHD). Before the incident, he had been diagnosed with "adjustment disorder" and had been receiving psychological treatment since January 2016.
In June 2017, the worker was informed he would be assigned to enforcement duties in a newly created unit called the District Enforcement Team (DET), starting on 20 June 2017. He disagreed with this posting and contacted a senior management officer requesting exemption based on health reasons. When his request wasn't granted, he made additional attempts to be transferred.
On his first day in the new position, the situation escalated. The worker went to the roof of his workplace building, threatened to jump, and displayed a banner complaining about being forced into the role.
Emergency services responded and took him to hospital, where he was diagnosed with "situational emotional reaction" and given two days' sick leave.
The court examined whether the worker's situation qualified for compensation under the Employees' Compensation Ordinance (ECO). In Hong Kong, such claims require proof of "injury by accident" arising from employment.
The judge determined that the worker's case didn't meet this threshold, finding that "[the worker] knew and it was within his expectation that the new posting would commence on 20 June 2017 such that his dissatisfaction and response would not amount to an accident." This suggests that anticipated work changes, even unwelcome ones, don't qualify as accidents under compensation law.
The court also found that "[the worker's] acts of going to the roof, writing and displaying banner as well as his response to the posting arrangement were probably due to his personality and pre-existing mental illness and did not fall within the meaning of 'accident'."
A major contention was whether assigning enforcement duties constituted a unilateral change to the worker's employment contract. The worker argued that law enforcement or issuing offence tickets wasn't within his contractual duties as a foreman.
The FEHD countered with testimony from a manager responsible for transfer and deployment of foremen, who stated that enforcement had always been part of foremen's duties since the worker began employment in 2011.
The judge accepted the manager's evidence, with the appeal court later noting: "Based on [the manager's] evidence, the Judge was amply justified in finding that law enforcement has always been part of [the worker's] work duties and there was nothing extraordinary or improper in [the worker's] posting to the DET."
The court reviewed how the worker performed after the incident to assess any ongoing impacts on his work capacity. The judge examined five appraisal reports covering the period from June 2017 to February 2022.
These reports showed the worker "continued to carry out his work duties and his performance was assessed to be good" following the incident. The documentation demonstrated no significant impairment to his ability to perform his job functions.
Based on this evidence, the judge concluded it was "most unlikely that his service with the government would be terminated on account of his mental illness" and that the worker failed to prove any loss of earning capacity caused by his mental health condition.
In dismissing both the original claim and subsequent appeal, the court emphasised the need to establish causation between workplace events and the claimed injury.
The appeal court explained: "The fact that [the worker] has not received any compensation under the Ordinance is because the Judge found he has failed to prove that there was injury by accident that arose out of and in the course of his employment."
The court further noted: "The Judge found the diagnosis of mental illness after the incident was a pre-existing condition and was not an injury caused by any accident." This highlights the distinction between pre-existing conditions and workplace-caused injuries.
When addressing claims about how the case was handled, the appeal court stated: "Contrary to the submission, the Judge was well aware that issues of negligence or breach of duty, which are relevant to a common law personal injury claim, are not relevant to [the worker's] claim for compensation under the Ordinance."
The worker was ordered to pay the employer's legal costs, with the appeal court confirming the original decision to dismiss the claim was correct.
