Frequently Asked Questions about

The Employment Ordinance, Cap. 57
Employment Protection

Q1.
What protection an employee will be accorded with under the Part on Employment Protection of the Employment Ordinance? Answer
Q2.
Under what circumstances can an employee make the following claim for remedies against an employer? What are the remedies?
(I) unreasonable dismissal
(II) unreasonable and unlawful dismissal Answer
Q3.
Under what circumstances can an employee make a claim for remedies against an employer for unreasonable variation of the terms of the employment contract? What are the remedies? Answer
Q4.
What are the valid reasons for dismissal or variation of the terms of the employment contract under the Employment Ordinance? Answer
Q5.
Under what circumstances does a dismissal contravene the law? Answer
Q6.
Will the Labour Tribunal force an employer to accept a reinstatement or re-engagement order? Answer
Q7.
What are terminal payments? Answer


Content

 

Q1.

What protection an employee will be accorded with under the Part on Employment Protection of the Employment Ordinance?

   
A1.
The Part on Employment Protection of the Employment Ordinance aims at discouraging employers from dismissing or varying the terms of the employment contract of their employees in order to evade their liabilities under the Ordinance.   An employee may claim for remedies against an employer under situations of ‘unreasonable dismissal’, ‘unreasonable variation of the terms of the employment contract’ and ‘unreasonable and unlawful dismissal’ as specified by the Ordinance.

Back to questions

Q2.
Under what circumstances can an employee make the following claim for remedies against an employer? What are the remedies?
(I)

unreasonable dismissal

(II) unreasonable and unlawful dismissal
   
A2(I)

Claim for unreasonable dismissal —

An employee employed under a continuous contract for a period of not less than 24 months may make a claim for remedies against an employer for unreasonable dismissal if he is dismissed other than for a valid reason as specified in the Employment Ordinance.  (see A4 for the valid reasons)

Under such circumstances, the Labour Tribunal, in considering the case, may order –
  1. reinstatement or re-engagement of the dismissed employee (subject to the mutual consent of both the employer and employee); or

  2. an award of terminal payments against the employer.

 

A2(II)

Claim for unreasonable and unlawful dismissal —

An employee may make a claim for remedies against an employer for unreasonable and unlawful dismissal if –

  1. the employee is dismissed by the employer other than for a valid reason as specified in the Employment Ordinance (see A4 for the valid reasons); and

  2. the dismissal is in contravention of the law (see A5 for unlawful dismissal).

Under such circumstances, the Labour Tribunal, in considering the case, may order –

  1. reinstatement or re-engagement of the dismissed employee (subject to the mutual consent of both the employer and employee); or

  2. an award of terminal payments against the employer. Furthermore, the Labour Tribunal may order an award of compensation not exceeding HK$150,000 to the employee in appropriate cases.

Back to questions

 

Q3.
Under what circumstances can an employee make a claim for remedies against an employer for unreasonable variation of the terms of the employment contract? What are the remedies?
   
A3.

An employee employed under a continuous contract may claim for remedies against an employer for unreasonable variation of the terms of the employment contract if –

  1. the terms of the employment contract are varied without the employee's consent and the employment contract does not contain an express term which allows such a variation; and

  2. the terms of the employment contract are varied other than for a valid reason as specified in the Employment Ordinance (see A4 for the valid reasons).

Under such circumstances, the Labour Tribunal, in considering the case, may order -

  1. reinstatement or re-engagement (subject to the mutual consent of both the employer and employee); or

  2. an award of terminal payments against the employer.

Back to questions

 

Q4.
What are the valid reasons for dismissal or variation of the terms of the employment contract under the Employment Ordinance?
   
A4.

Under the Employment Ordinance, the five valid reasons for dismissal or variation of the terms of the employment contract are:

  1. the conduct of the employee;

  2. the capability or qualifications of the employee for performing his work;

  3. redundancy or other genuine operational requirements of the business;

  4. statutory requirements; or

  5. other substantial reasons.

Back to questions

 

Q5.
Under what circumstances does a dismissal contravene the law?
   
A5.

Under the Employment Ordinance, dismissal in the following circumstances contravenes the law:

  1. dismissal of a female employee who has been confirmed pregnant and has served a notice of pregnancy to her employer;

  2. dismissal whilst the employee is on paid sick leave;

  3. dismissal by reason of an employee giving evidence or information in any proceedings or inquiry in connection with the enforcement of the Employment Ordinance, work accidents or breach of work safety legislation;

  4. dismissal of an employee for trade union membership and activities; or

  5. dismissal of an injured employee before having entered into an agreement with the employee for employee's compensation or before the issue of a certificate of assessment.

Back to questions

 

Q6.
Will the Labour Tribunal force an employer to accept a reinstatement or re-engagement order?
   
A6.
No.  An order for reinstatement or re-engagement will only be made if both the employer and the employee agree to the making of such order.

Back to questions

 

Q7.
What are terminal payments?
   
A7.

Terminal payments includes:

  1. the statutory entitlements under the Employment Ordinance which the employee is entitled to but has not yet been paid upon dismissal such as wages, payment in lieu of notice, end of year payment, maternity leave pay, severance payment or long service payment, sickness allowance, holiday pay, annual leave pay, etc;

  2. the entitlements the employee might reasonably be expected to be entitled to under the Employment Ordinance had he been allowed to continue his employment; and

  3. any other payments due to the employee under his contract of employment.
An employee may be awarded terminal payments even if he has not attained the qualifying length of service required for the entitlements. In such case, the terminal payments shall be calculated according to his actual length of service.

Back to questions