Publications

How to Apply for Employees' Compensation for Death

Introduction
This leaflet explains concisely the provisions of the Employees' Compensation Ordinance (ECO) on the compensation for death as amended by the Employees' Compensation (Amendment) (No. 2) Ordinance 2000.  The provisions described here are only applicable to accidents which happen on or after 1 August 2000.

What is Compensation for Death?
If an employee dies as a result of an accident (or a prescribed occupational disease) arising out of and in the course of employment, his/her employer shall be liable under the ECO to pay the compensation for death to his/her surviving members of the family. 

In addition, the employer is liable to reimburse the reasonable expense of funeral of and medical attendance on the deceased employee, up to a maximum of $35,000.

How is the Compensation for Death Computed?
 
Age of Deceased Employee
Amount of Compensation for Death
Under 40
84 months' earnings*
or $303,000, whichever is higher
40 to under 56
60 months' earnings*
56 or above
36 months' earnings*
*  For the purpose of calculating compensation, monthly earnings are subject to a maximum of $21,000

The compensation shall be distributed to the deceased employee's eligible members of the family in accordance with the apportionment schedule given in Table 1.

Who Shall be Entitled to Compensation?
Compensation for Death
The compensation for death shall be payable to "members of the family" of a deceased employee.  Under the ECO, the "members of the family" (whether by blood or by an adoption recognised by law)of a deceased employee are:

  • a spouse or cohabitee ("cohabitee" means any person who at the time of the accident concerned was living with the employee as the employee's wife or husband);
  • a child;
  • a parent or grandparent; or
  • a grandchild, stepparent, stepchild, brother, sister, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, child of a brother or sister of whole blood, half-brother and half-sister, any of whom shall be residing with the employee as a member of the same household for the period of 24 months immediately preceding the accident.
Funeral Expenses and Medical Attendance Expenses
Any person who has paid the expenses of funeral of or medical attendance on the deceased employee is entitled to the reimbursement of the expenses. 

Determination by the Commissioner for Labour
Applicability
In accidents where all the parties to the claim have agreed, the Commissioner for Labour (the Commissioner) may determine on the amount of the compensation for death and/or funeral and medical attendance expenses payable and persons to whom such compensation shall be paid.

Period for Submitting Claim
Application for determination on the compensation for death :  within 6 months from the date of death of the employee.
Reimbursement of the funeral/medical attendance expenses  : within 30 days from the day of the cremation/burial of the employee or the day on which the Commissioner receives the employer's consent to the determination, whichever is the later.

Determination and Issue of Certificate
Upon receipt of an application, the Commissioner will consider whether the case is suitable for his/her determination.  If yes, the Commissioner shall make the determination and issue the relevant certificate to all the applicants and the employer, stating the amount of compensation payable and the eligible persons to whom payment should be made. 

Either the employer or an applicant may object to the determination made by the Commissioner.  In such cases, the Commissioner shall review his decision and issue a review certificate.  Alternatively, any party to the claim may appeal to the District Court against the Commissioner's decision.

Interim Payments
If a claim for the compensation for death is to be determined by the Commissioner, the spouse (not including the cohabitee) of the deceased employee may apply to the Commissioner for determination on the Interim Payments while pending determination on the compensation for death.  Upon receiving such an application, the Commissioner shall issue a certificate giving details of his determination.
The Interim Payments shall be payable by the employer to the spouse of the deceased employee.  Comprising an initial payment and subsequent monthly payments at the rate of 50% of the earnings of the deceased employee, the Interim Payments shall not in aggregate exceed 45% of the total amount of compensation for death payable.  The aggregate amount of the Interim Payments paid shall be deductible from the share of compensation that the spouse would be entitled to. 

Determination by Court
If the Commissioner considers that a claim is not suitable for his/her determination, or if the employer or any claimant does not agree to submit the claim to the Commissioner for determination, the case would have to be adjudicated by the District Court.  Claimants shall lodge the claim with the Court within 24 months from the date of death of the employee. 

If a claim has to be determined by the Court, the members of family of the deceased employee may:

  1. apply to the Legal Aid Department for legal aid;
  2. apply to the District Court direct; or 
  3. engage a solicitor to represent them,
for instituting legal proceedings.

The Fatal Cases Office of the Labour Department will assist the members of the family of deceased employees by referring them to the Legal Aid Department or the District Court upon their request.

How to Make a Claim for Compensation for Death
Any person who wishes to claim for compensation for death should call at the Fatal Cases Office of the Labour Department as soon as possible after the death of the employee.  He/she should bring along the following documents:

  1. his / her own identity card;
  2. identity card of the deceased employee;
  3. certificate of death or certificate of order authorizing burial/cremation of body of the deceased; and
  4. relevant documents certifying the relationship between the deceased and the applicant, e.g. marriage certificate, birth certificate or proof of residence.
Family Members Residing outside Hong Kong
Members of family of the deceased employee residing outside Hong Kong are required to provide the following documents if they wish to claim for compensation:
  1. Documents of identity, e.g. Passport.
  2. Certificate / documents certifying the relationship with the deceased employee; and
  3. Letter of Authorization of an attorney to act on their behalf in pursuing the claim.
The applicants should ensure that the documents are prepared in their native language with English translation (no translation is necessary if the documents are in Chinese or English), authenticated by their local authorities or Notary Public and endorsed by an officer of the Consular Department of the Ministry of Foreign Affairs of China (in case family members residing in China) or by an overseas Chinese Consular Officer (in case family members residing in countries / territories other than China).

What the Employer should Do?
The employer must notify the Labour Department of any fatal accident by submitting the "Notice of Accident" (Form 2 / 2A) within 7 days after the accident, irrespective of whether the death gives rise to any liability to pay compensation.  An employer who, without reasonable excuse, fails to give notice of an accident or furnishes any false information to the Commissioner, commits an offence and upon conviction, is liable to a fine of $50,000.

If the employer has no dispute on the liability to pay compensation arising from a fatal accident, he may give consent to submitting the claim to be determined by the Commissioner.  Upon the issue of certificates by the Commissioner, the employer should effect payment of compensation or reimbursement of the funeral and medical attendance expenses in accordance with the Certificates if no objection or appeal has been raised by any party. 

An employer who, without reasonable excuse, fails to make payments in accordance with a Certificate/ Review Certificate shall pay a surcharge in addition to the amount of the compensation/payments stated in the Certificate/Review Certificate.  He also commits an offence and is liable to a fine of $100,000 upon conviction.

Where to Obtain More Information?

Fatal Cases Office
Employees' Compensation Division
Labour Department
Room 601, 6/F., Harbour Building
38 Pier Road,
Central,
Hong Kong

Tel: 2852 4030  Fax: 2854 4166

Table 1
 
Family Members Eligible for Compensation
 Apportionment of Compensation
  1. Only spouse / cohabitee
 100% to spouse / cohabitee
  1. Only child(ren)
 100% to child(ren)
  1. Only parent(s) / grandparent(s)
 100% to parent(s) / grandparent(s)
  1. Only spouse / cohabitee and child(ren)
 50% to spouse / cohabitee
50% to child(ren)
  1. Only spouse / cohabitee and parent(s) / grandparent(s)
 80% to spouse / cohabitee
20% to parent(s) / grandparent(s)
  1. Only spouse / cohabitee, child(ren), and parent(s) / grandparent(s)

    2. (whether or not there is any other eligible members of the family)
 45% to spouse / cohabitee
45% to child(ren)
10% to parent(s) / grandparent(s)
other member(s) of the family is / are not entitled to compensation
  1. Only child(ren) and parent(s) / grandparent(s)
 80% to child(ren)
20% to parent(s) / grandparent(s)
  1. Only other member(s) of the family with no surviving spouse / cohabitee, child(ren) or parent(s) / grandparent(s)
 100% to the other member(s) of the family
  1. Only spouse / cohabitee and other member(s) of the family
 95% to spouse / cohabitee
5% to other member(s) of the family
  1. Only child(ren) and other member(s) of the family
 95% to child(ren)
5% to other member(s) of the family
  1. Only parent(s) / grandparent(s) and other member(s) of the family
 95% to parent(s) / grandparent(s)
5% to other member(s) of the family
  1. Only spouse / cohabitee, child(ren) and other member(s) of the family
 50% to spouse / cohabitee
45% to child(ren)
5% to other member(s) of the family
  1.  Only spouse / cohabitee, parent(s) / grandparent(s) and other member(s) of the family
 75% to spouse / cohabitee
20% to parent(s) / grandparent(s)
5% to other member(s) of the family
  1. Only child(ren), parent(s) / grandparent(s) and other member(s) of the family
 75% to child(ren)
20% to parent(s) / grandparent(s)
5% to other member(s) of the family
Note 1: If there are more than one eligible person in the same category, the amount of compensation shall be shared among them equally. However, where the deceased employee is survived by both parent(s) and grandparent(s), the amount of compensation payable to this category of family members shall be divided as follows:
 
70% to parent(s)
30% to grandparent(s)
Note 2: Other member(s) of the family includes grandchild, stepparent, stepchild, brother, sister, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, child of a brother or sister of whole blood, half-brother and half-sister, any of whom shall be residing with the employee as a member of the same household for the period of 24 months immediately preceding the accident.