Wed, 06/23/2021 - 11:02 — lac-admin
2021-06-23
Preface
Last year, a cleaning worker, Fang (pseudonym), suffered from mental illness after having been bullied in the workplace and was later adjudged as occupational injury by the Labour Department. This is a rare success story. According to Ming Pao, the Labour Department receives over 50,000 claims requesting for compensation due to work-related injuries each year, but only 17 claims were assessed as mental impairment at work in the last three years. Dr. Law Chi-kwong, Secretary for Labour and Welfare, also said in the Legislative Council that the Government had not yet thought of listing mental impairment as an occupational disease for the time being.
In the year of 2018, Fang was asked by her supervisor to reschedule her working time, but she refused to follow the request as she had to take care of her family. Since then, Fang began to experience continuous bullying from her three supervisors, including verbal abuse, work assigned beyond her job duties, being downgraded in the appraisal, and loss of chance for salary increase. Thereafter, Ms. Fang began to suffer from insomnia, baldness, dizziness, and even suicidal thoughts. At the end of that year, Fang was diagnosed with depression.
In 2019, her employer questioned about the fact whether her reported condition was a "work-related injury" and demanded the Labour Department to proceed an investigation. Fang cooperated with the Department for its investigation. "She hoped that through (the investigation of) the government department, (her mental impairment) would be adjudged as a work-related injury. It pointed out the fact that mental disorders caused by bullying at work, not just physical injuries, were also occupational injuries", shared Ms. Lam, who was Fang’s case worker of the Association for the Rights of Industrial Accident Victims (ARIAV).
It took nine months for the Labour Department to complete the investigation. In 2020, Fang received the report. The Labour Department believed that her medical condition and sick leave were corresponding to the occupational injury she had claimed (mental disorders caused by bullying at work). Despite this, the Labour Department did not have the authority to file the case to arbitration. The insurance company eventually offered a settlement with Fang, but it had no implication that the employer or the insurance company recognized Fang’s condition as a work-related injury. And until now, neither the employer nor the insurance company has directly recognized Fang's case as an occupational injury. Fang was granted a small amount of money only.
Fang's case shows us that there are complicated relationships between mental illness and labour rights. Since mental illnesses are not yet classified as occupational diseases in Hong Kong, the process of claiming compensation for mental illness by workers through occupational injury compensation is full of twists and turns. This article, as a dialogue, presents the details of the successful case, through which the unequal power behind bullying at work and the institutional hurdles in the process of claiming compensation for mental impairments are articulated. Finally, we also discuss why mental illnesses must be classified as occupational diseases.
Since Fang is not fit for interview and the supervisor in question is still practicing his duty, we instead conduct an interview with Ms. Lam Ching Yee, an organizer of the ARIAV, about Fang’s sufferings and the details of her claim for compensation.
L: Ms. Li, Labour China Action
A: Ms. LAM Ching Yee, Organizer, Association for the Rights of Industrial Accident Victims
1. "Bullying makes people hurt"
L: How did you first know Fang?
A: In September 2020, Fang called our office. She wanted to make a simple inquiry. She wanted to ask about whether depression caused by work stress was assessed as an occupational injury. At that time, Fang did not aim to demand for compensation, but to ask the employer to admit the fact that bullying at work and work stress did happen in her workplace.
L: I am surprised by the fact that in 2019, when Fang had not yet received any assistance by labour organizations, she had been already aware of that depression caused by work stress could be an occupational injury. At that time, such cases were very rare in Hong Kong.
A: One of Fang’s friends found her in serious mental distress and advised her to consult the Labour Department, "Should you consult the Labour Department and ask them if it is a work-related injury?” Because the question was close related to the following issues: Fang had to take leave, to see doctor, to follow up her mental illness, and to take medicine. Fang needed to clarify the issues with the Labour Department.
L: At that time, did Fang file the claim of injury at work mainly for the sick leave and medical expenses?
A: In fact, Fang had never thought about claiming compensation for her injury. She just wanted someone to tell the company clearly that the bullying at work was wrong and would make someone hurt. At that time, Fang had never thought of compensation. She just wanted to give evidence to prove that she was indeed impaired mentally because of the bullying at work.
L: How did you respond to Fang when she approached ARIAV?
A: At that time, the Labour Department’s investigation concluded that her sick leave reported was related to her mental injury. Yet the employer kept silent to the fact whether it agreed or not that Fang’s injury was an occupational injury. We raised the issue to the insurance company and demanded it to recognize the conclusion of the Labour Department. The insurance company later appointed a notary to approach Fang. The notary offered Fang an amount and wished to make settlement for the case, but the perquisite was that the company would not recognize the conclusion of the Labour Department. Initially Fang felt to get hurt by the offer and hesitated to take the offer, but in the end, Fang made settlement with the company.
The compensation amount itself had not mattered to Fang since the day she approached ARIAV. She just wanted to demand for justice. Someone did something wrong and s/he had to be held responsible. So the facts whether or not the supervisor would be punished and whether or not someone would speak out that the supervisor had done something wrong did matter to Fang. As a cleaning worker, her supervisor thought he was in a superior rank. But Fang insisted that he was not entitled to make her humiliated because he occupied higher position than she did.
2. Mental health reflects deprivation of labour rights: bullying at work under an unequal power relationship
L: In her appraisal in company, Fang had been ranked in the two highest grades. But after her refusal to change the working time, Fang’s rating dropped to the grades at the bottom. I would like to know the details of the appraisal system. How can it affect employees?
A: Fang’s company conducted assessment every year. If you were ranked below a specific grade, your wage would not be adjusted up. Those who were ranked low grades would be the first group to go in the face of staff cut. I had looked through Fang’s assessment report and the information was very detailed that all job performances a day would be covered, which parts were performed well and which parts, poorly. Fang was shocked when she got the assessment report. She found many comments unfair and untrue. She told her supervisor that she did not think she performed as poorly as the assessment commented, but the supervisor refused to revise the assessment. Because of this rating, her salary was not adjusted up. But what made her feel angrier with was not the stagnant wage, but rather the supervisor’s slanderous comments on her poor working attitude.
L: May I know more about the details of the assessment report?
A: The report had board coverage, say “fail to follow the instructions of superior”. But Fang argued that the jobs assigned to her fell out of her job duties and were not taken by the rank of staffs, like Fang’s. The jobs were usually to be outsourced to more professional cleaning staffs. But her supervisor criticized, "Why is here so dirty that you haven’t cleaned up?” Fang disagreed to the assessment and complained the issue to the head office. She complained of the supervisor’s bullying on staffs and targeting against her. Fang mentioned that the head office had sent someone to make apology to her and admitted that the supervisor's behaviour was improper.
L: Such kind of assessment system prevails everywhere. Do you think that workers’ rights are deprived of under such system?
A: It is good, I think, to have an appraisal system that tells employees how they perform throughout a year. But it is wrong if it becomes a tool of oppressing workers. Some methods of appraisals are better, say the assessment made by supervisors, workers themselves and other staffs separately. It would be more comprehensive and objective. If it is done by supervisor alone, I could be assessed with a good grade even though I perform poorly because of my close relationship with supervisor.
L: You mentioned that the bullying occurred after Fang’s refusal to change the working time. Do you mean that she had been happy in working with her supervisors and colleagues and found satisfied with the working conditions before?
A: Yes, her colleagues treated her well and supported her. Some colleagues had helped her voice out, but the supervisor criticized the colleagues that the issue had nothing to do with them, they should not made noise. Some colleagues were angered by Fang’s unfair treatment, but they, as subordinates, dared not confront the supervisor. Fang shared that the supervisor had worked in company for many years and was approaching retirement. He was very senior so as to oppress the junior easily, like Fang.
L: Does Fang means that it is difficult for the company to transfer out the supervisor because he has been in company for many years?
A: One reason is seniority. Another reason is that as a supervisor, he has duties and power to manage staffs and evaluate their work performance. This is a matter of management, but it is easy for someone to abuse the power. S/he could mark staffs down if the supervisor does not work with the staffs well.
After the headquarters apologized to her, Fang was actually in a better mood because someone had finally apologized to her on this issue. Fang felt that she was respected although she was just a cleaning worker. She was very moved. But due to the supervisor was not transferred out, bullying at work remained there.
3. Labour Department investigation process: psychiatric diagnosis is crucial
L: Has the psychiatrist, in his medial report, mentioned directly that the depression Fang suffered from was work-related? I think that it is crucial. In similar cases, the Labour Department excuses that it is difficult to prove that the mental illnesses directly result from work. So did the medical diagnosis, I think, play a key role?
A: Yes, it did play a key role. The whole investigation dominantly relied on the psychiatric report. I personally do not know what exactly the report stated about, but the Labour Department mainly took the report as main reference for its recognition of Fang’s mental illnesses as occupational injury.
L: Could you tell us more about the investigation by the Labour Department on this case?
A: I do not want to focus on Fang’s case, but the Labour Department usually will request medical report from hospital. It sometimes issues a questionnaire to both employer and employee. Medical report plays a crucial role in the process because the Department relies on doctor’s professional judgment in determining the causal relationship between a worker’s mental impartment and his/her work. So work-related trauma, even occupational diseases, depend upon doctor's judgment.
L: Since psychiatric diagnosis is so crucial, both psychiatrists and workers should know more about the relationship between emotion and work.
A: In fact, many people feel that their works are stressful. We recognize that we are under fatigue and stress, and that they are related to work. However, it is difficult to judge whether it comes from work alone. It is why workers are difficult to win their cases of mental distress at work. Moreover, many people change jobs when they find their work unhappy in the initial stage. They will not pursue justice. Therefore, many cases of bullying at work are covered.
4. The key to the success of Fang’s case: someone is willing to stand up and fight
L: After listening to your briefing of the investigation process of the Labour Department, do you think that the key to the success of Fang's case lies on medical report?
A: There are several factors to the success. One is the fact whether workers come up to fight. Many workers think that if they are not happy with the jobs, they will leave. Such cases are never known to the public. Secondly, does a worker realize that mental impairment due to work stress is an occupational injury? Like Fang, she initially also did not think of her mental illness as an occupational injury. She just thought of unfair treatment or discrimination. Therefore, the most crucial issue is whether the victims come up to report the cases. If they do not do so, the cases are gone. Many people may be surprised by the fact that mental illnesses could be assessed as occupational injuries. But if they do not report their cases and give up, so no case is made. The third is medical report. Can a worker tell doctor clearly of that his/her suspected mental injury is work-related? The last one is how long a worker’s mental distress lasts. If the mental distress occurs once, the case is not easy to stand. But it lasts for a long time, the case is easier to stand.
L: Since there are very few cases of work-related mental injuries, what kinds of difficulties do we face in the whole process of claiming compensation? There have been few relevant cases indeed.
A: There are few cases indeed we could follow up. It is especially difficult to the mentally ill. They need to take sedatives and feel tired after medication. Moreover, the victims could not find bright future of their cases. They also care of how the people around see their cases. Many people will think why you suffer so much here. You may rather go to other companies.
5. The loopholes of Hong Kong's occupational injury claim system: The Labour Department has no power to arbitration, and workers bear heavy burden of their litigations
L: Although the Labour Department’s investigation identified Fang’s mental illness as a work-related injury, the company has never admitted the case as an occupational injury. The report of the Labour Department seems to make a recommendation only. It creates no impact.
A: It is because the Labour Department has no arbitration power. It is only a middle agent. The Department could handle the case with the prior consent of both employer and employee. Based on its investigation, the Labour Department identify a worker’s mental illness as occupational injury. But if insurance company or employer refuses to agree so, employee has to pursue his/her case to court.
L: So would workers not be imposed heavy burden?
A: Yes, it is unfair to workers. We think that the Labour Department should have the power to arbitration. As a government administration, the Department could reach medical doctors, professionals and experts for consultation. Definitely it is able to conduct arbitrations. Workers are always the disadvantaged party. They enjoy less resources, social networks, financial power and knowledge than companies do. If I have to file a lawsuit against company, and I do not know how to complete and submit the documents, I will give up. In many cases, when employees cannot find justice, they, not the management, will leave company.
L: Even if the Labour Department wants to do an investigation, cannot it still do the investigation in face of the objection of the company?
A: No, it cannot. So it is easy to let employers go. In many cases, workers are not firm enough, so they choose to drop their cases eventually. They will think that they are not hurt seriously. They will take couple days rest and look for new jobs instead of spending so much time and efforts in fighting for their cases.
L: Should Fang still go for medical follow-ups and pay for the medical expenses. How much does the payment by the insurance company afford her medical and living expenses?
A: I cannot disclose the amount. In fact, we had sought legal advice before concluding settlement with the company. Was the amount good enough for settlement? At that time, the lawyer thought that she could get higher compensation, but Fang's mental state might not be able to stand for the long lawsuit. In Hong Kong, it took months from the time Fang applied for legal aid to the time she was granted legal aid. Moreover, it took a very long time for the lawyers to handle the case and the insurance company to offer a settlement. In some cases, it may take three to four years or longer from the time of filing the claim to court to the time of receiving compensation. Fang had suffered from serious mental distress. It was too harsh to her to proceed the litigation for several years. It was tortuous to her and brought her additional damages. So when she could not stand anymore, she rather chose to take the offer of settlement no matter how unfair the amount was.
6. Does the injuries suffered by employees include psychological trauma? Is it necessary to include mental illness as an occupational disease?
L: In Ming Pao's report, the Labour Department said, "If an employee gets injured at work during employment, the employer is generally held liable for compensation under the Employees' Compensation Ordinance. Employees' injuries include physical impairments, organ impairments and mental impairments.” Since mental impairment has been covered by the definition of “injury”, is it still necessary to list mental illness in the category of occupational diseases? Or what is the necessity to list mental illnesses in the category of occupational diseases?
A: There are different time restrictions on the claims between the work-related mental impairment and listed occupational diseases. Occupational disease has been legally defined. In case of pneumoconiosis, I will be compensated under whatever condition do I contract the disease. I do not have to prove that the disease is caused by work. It is because pneumoconiosis is rare and it is obviously associated to inhaling asbestos fibers. Similarly in case of occupational deafness, a worker's deafness is assessed as an occupational disease under the only condition has a worker worked continuously in a work with high noisiness for several years. The compensation process of a listed occupational disease is much simpler. You will be compensated as long as you meet the requirements.
But you say that you have covered mental impairment in the scope of “injury”. Therefore, a worker is requested to prove that his/her impairment comes from work alone. Occupational injury must not be caused by other factors, but work alone, and it must be an outcome directly induced from work. It is very difficult to determine if a mental impairment is caused by work alone, as work may accounts for a large portion of the causes of the injury. We demand that mental illness should be listed as an occupational disease. Hong Kong has become a financial hub. Our jobs are dominantly in the service industry, no longer those with physical labouring. Mental impairments and stress at work have become more and more serious. I think it needs to take time to study how an occupational injury is defined.
L: My understanding is that although mental impairment or mental illness is not listed in the First Schedule, "Injury", and the Second Schedule, "Occupational Disease", of the Employees' Compensation Ordinance, it is still possible to apply for the occupational injury investigation. The difference is that you have burden of proof that the mental illness is caused by your work alone. It requires longer time to investigate and is more complicated and difficult to prove.
A: It is true. It is more difficult to get fair compensation because of the high hurdles of evidence proof.
Timeline of Fang’s claim for compensation for her depression as occupational injury
2018- Fang’s supervisor bullied her at workplace after Fang refused to adjust her working time. Later, Fang was diagnosed with depression. According to the doctor’s notes, Fang’s depression and anxiety were indeed caused by bullying at work.
2019.07-Fang’s employer questioned of the medical diagnosis and requested the Labour Department to proceed an investigation. Fang cooperated with the Labour Department for the investigation and demanded the Department to determine if her depression caused by bullying at work should be classified as occupational injury.
2019.07-Fang received the investigation report from the Labour Department. The report indicated that her medical condition and medical leave were related to the occupational injury she had claimed for. But her employer and the insurance company did not make an immediate response to the report.
2020.09- Fang contacted ARIAV and enquired for whether depression caused by bullying at work and work stress should be classified as occupational injury.
2020.09-The insurance company commissioned a public notary to propose a settlement to Fang. As Fang had little knowledge on the legal matters, she again approached ARIVA to seek advice if she should file her case to court. ARIVA started to follow up Fang’s case.
2020.09-The notary sent Fang a settlement proposal, but the document stated that under no circumstance, did the settlement imply a fact that the employer was held responsible for Fang's injury. In other words, even if the insurance company offered a compensation, it did not imply that the employer recognized the investigation report of the Labour Department and that Fang’s depression was caused by bullying at work.
2020.20-Fang took the settlement.
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