TNAG-2668-FCO40-3865-Hong-Kong-Civil-Service-1993 — Page 162

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Wrongful dismissal actions could cost taxpayers millions

47. If we do commence proceedings, we anticipate that it will take the form of an application for a declaration that the current policy, so far as it discriminates between permanent resident civil servants in the renewal of agreements, contravenes the Bill of Rights. We would also seek a declaration that denial of equal access to permanent and pensionable terms of employment also contravenes the Bill of Rights. If the declaration on the non-renewal issue is obtained, it would pave the way for damage actions for wrongful dismissal by all employees to whom the policy has been illegally applied since the enactment of the Bill of Rights on 8 June 1991. This could amount to claims of $100 million or more. Prudent civil service management would dictate that such a financially risky policy should be put on hold pending a review.

AECS willing to forgo damages if policy revised before action

48. While we cannot interfere with the legal rights of any of our members, the current AECS Council is now willing to undertake not to initiate or support an action claiming damages if the Government is prepared to change the policy before proceedings are commenced. However, we have advised members to prepare their cases for a damage action by keeping records of their costs and losses caused by losing their employment, should such a case be commenced. (See our 12 February 1993 letter to members in the Appendix.)

Court defence of racial policy to be avoided

49. With all of the problems facing Hong Kong, the Government should not be expending any of its energy in defending such an inherently discriminatory policy. Surely the prospect of our Government appearing in Court to defend a racially discriminatory policy is something we would all wish to avoid. It will bring discredit to our international reputation as a cosmopolitan and racially tolerant society.

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Other related issues

Localisation of the police

50. It is curious that the localisation policy on renewal of agreements does not apply to the police force. The police associations have been asking the Government what its intentions are. We would like to know what reasons there are for any distinction between the police and the rest of the civil service. Of course, we do not advocate application of the current policy to the police.

Localisation of the Judiciary

51. Unlike the rest of the civil service, all judicial officers who are employed on agreement terms have the right to transfer to permanent and pensionable terms, thus securing their future employment. As we have said in the case of the police, why should their be this distinction from the rest of the civil service. Of course, we do not advocate changing the current policy for the Judiciary.