Wednesday, July 18, 2007

M v SJ

M v SJ is a very important case in HRM. I think it should be summarized and put in the HRM bible so that all managers could be aware of the case and its implications. It is a scenario which many managers would encounter in their daily work. The fact that it is brought to court and put under the judicial microscope has given the case a fresh perspective. The facts, actions and reactions, arguments, legal views, and legal precedents are collected and analyzed in great details.

This case was heard in the District Court. The judgment was handed down on 16 July 2007. Those interested may wish to read the judgment. But please be warned that it is a 130-page document with 292 paragraphs, sort of like a book. The judge wrote it like a story. You would be reading the scenarios, conversations, appraisal reports, expert opinion on work stress, plus the legal opinion on which evidence was acceptable or unacceptable.

Mickey (a fictitious name) was an AO. He was posted to HAB to work under John Wan, and then to TB under Patrick Ho. His performance was grossly unsatisfactory, receiving E and D gradings respectively. CSB offered counsel as grade management, with Gary Poon and Tong Cheng as the career managers responsible for junior AO. Mickey eventually resigned, upon suggestion that his service would be terminated otherwise.

This common HRM case took a turn when Mickey sued the government (Secretary for Justice) for being discriminated owing to his psychiatric illness: GAD - General Anxiety Disorder. He claimed that his resignation was a result of discriminatory and harassing conducts of the four AO involved, and claimed for damages of $20 million. He failed.

I do not wish to repeat what the judge said. But I can assure you that it is interesting and enlightening. You can read it yourself. I also think that in the hand of another judge or another counsel, the result could be the other way round. So much is my impression on how justice is practiced. There are however some points which are amusing that I highlight below.

Several psychiatrists were engaged by Mickey and SJ as expert witnesses on Mickey's health conditions. As usual, experts explained the conditions with different theories and interpretations. The judge rightly pointed out that none of them used the term mental disorder. One expert said that Mickey has obsessive compulsive personality traits, which include tendency towards perfectionism, excessive suppression of emotion, obsession with details and excessive devotion to work. The judge considered them not disabilities by themselves but only a reflection of Mickey’s personality. We frequently saw such personality in many conscientious officers and high flyers; surely they were not suffering from mental disorder.

Another point of interest is when did Mickey get the alleged disorder. This led to the argument whether he was discriminated against because of a prevailing disability or the disorder was a result of his performance at work. Dr. Lieh-Mak gave a clever explanation that his anxiety probably existed as a personality many years ago but its severity crossed the threshold of becoming a disorder when he worked as an AO.

A term "constructive dismissal" was created in the allegation. It was pleaded that CSB constructively dismissed Mickey by causing him to tender his resignation in response to “harassment and intimidation”, thereby constituting direct discrimination of Mickey. I am pleased to say that I did not constructively dismiss anyone by asking anyone to resign. I did terminate a few officers for incompetence during probation, with compensation of one-month salary in lieu. Come to think of it, many resigned to seek greener pasture, but some did so as they could not cope. All of the latter could then be said to have been constructively dismissed.

Reading Mickey's misfortune, I note two points that may be used as indicators on reflecting our own situation. The first one is that, when the boss lost faith in you, your work portfolio could be reduced. Mickey realized that and alleged that it was discrimination and an attempt to humiliate and harass. So less work is actually a dangerous sign. The other one is inefficient subordinate support. Mickey claimed that his secretary was inefficient and he sought help from the secretary of his boss, which made things even worse for him. You just cannot run away from inefficient subordinates. Motivating subordinates is an essential task for a manager. You can either motivate your subordinates to work more efficiently, or if unsuccessful, take disciplinary or performance management actions.

On work stress related anxiety disorder, I quote a few sentences in the concluding remarks of the judgment for us to be aware of.
"291. In the present case, one of the reasons why an employer may be difficult to find out whether an individual employee is suffering from any kind of psychiatric or psychological disorder is that the symptoms of such disability may just be found in any other persons who happens to work under stress. This is certainly not a healthy phenomenon. Although I do not accept Professor Lieh-Mak’s evidence in its entirety, I must agree with her observation that mental health of employees in working environment is a very much neglected issue in Hong Kong. Undoubtedly, Hong Kong is a very competitive society, and so employees inevitably have to bear with various degrees of stress arising from work. However, stress can also affect the health of individuals in various ways..."

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