The Employment Ordinance, Cap. 57

Under what circumstances can an employee make the following claim for remedies against an employer? What are the remedies?

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)

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.

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 ( such order can be made without the need to secure the employer’s agreement*); 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.

* Where an employee has been unreasonably and unlawfully dismissed before 19 October 2018, an order for reinstatement or re-engagement will only be made if both the employer and the employee agree to it.

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.

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.

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.

For unreasonable dismissal and unreasonable variation of the terms of the employment contract, an order for reinstatement or re-engagement will only be made if both the employer and the employee agree to it.

For unreasonable and unlawful dismissal, if the Labour Tribunal considers the order is appropriate and reinstatement or re-engagement of the employee by the employer is reasonably practicable, such order can be made without the need to secure the employer’s agreement*.

* Where an employee has been unreasonably and unlawfully dismissed before 19 October 2018, an order for reinstatement or re-engagement will only be made if both the employer and the employee agree to it.

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, paternity 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.