Following our previous discussion on the abolition of MPF offsetting and its impact on severance and long service payments, this second article in our series delves into other critical aspects of employment termination in Hong Kong: notice periods and unfair dismissal. Understanding these rights is essential for employees to protect themselves during a period of employment transition.
The Importance of Notice Periods
When an employment contract is terminated, whether by the employer or the employee, a notice period is typically required. This period allows both parties to prepare for the transition. In Hong Kong, notice periods are governed by Employment Ordinance, Cap. 57 and in accordance with any terms of your individual employment contract.
General Rules for Notice Periods
- Probationary Period: An employment contract may contain a probation period, where your employment contract does specify a probation period, the employer or employee is required to provide to the other the following notice period apply:
| Within first month of probation | No notice is required unless the employment contract provides otherwise. |
| Where employment contract makes provisions for required length of notice after first month of probation | As per the employment contract, but a minimum of 7 days notice. |
| Where employment contact does not make provisions for required length of notice after first month of probation | A minimum of 7 days notice. |
- No Probation Period or Continuous Contracts: Where an employee has been employed continuously by the same employer for four weeks or more, with at least 18 hours worked in each week, the employee is regarded as being employed under a continuous contract. For continuous contracts or where an employment contract does not contain a probation period, the following notice period apply:
| Where employment contract does make provisions for the required length of notice | As per employment contract, but a minimum of 7 days notice. |
| Where employment contract does not make provisions for the required length of notice | A minimum of 1 month notice. |
- For a non-continuous contract: Where an employee is not deemed to work under a continuous contract, please refer to the continuous contract section after, the length of notice shall be the agreed period.
- Employment Contact: It is crucial to review your employment contract carefully for these details, to ensure that the proper notice is provided by you or the employer to ensure that the employment contract or legislation is not breached.
Payment in Lieu of Notice
Either the employer or the employee can choose to terminate the employment contract without giving the required notice. In such cases, a payment in lieu of notice must be made to the other party. This payment is equivalent to the wages that would have been earned during the notice period. Payment of lieu is not required if termination is carried out during the first month of probation unless the contract provides that there is a notice period or specifies otherwise.
Calculation of Payment in Lieu of Notice: This payment is calculated based on your average daily or monthly wages over the 12-month period immediately preceding the termination date and multiplied by (i) Number of days in the notice period for which wages would normally be payable to the employee (if notice is expressed in days or weeks) or (ii) Number of months specified in the notice period (if notice is express in months).
Unfair Dismissal: Knowing Your Protections
While employers can terminate employment for valid reasons, including redundancy, Hong Kong law provides significant protections against unfair or unlawful dismissal. It is vital for employees to understand what constitutes an unfair dismissal and what remedies are available.
What is Unreasonable Dismissal?
An unreasonable dismissal occurs if you have been employed under a continuous contract for not less than 24 months and are dismissed for reasons other than the valid reasons specified in the Employment Ordinance. While redundancy can be a valid reason, the process must be fair and non-discriminatory.
What is Unreasonable and Unlawful Dismissal?
This is a more serious category of unfair dismissal. It occurs when your dismissal is not for a valid reason and is also in contravention of the law. This often involves discriminatory practices or other breaches of statutory protections.
What Your Employer CANNOT Do (Examples of Unlawful Dismissal)
Even if an employer is undergoing genuine redundancy, they cannot lawfully dismiss you for certain prohibited reasons. These include:
- Discrimination: Dismissal based on your sex, marital status, pregnancy, family status, disability, or race. For instance, dismissing an employee because she is on pregnancy leave is strictly prohibited and constitutes unlawful dismissal.
- Trade Union Membership: Dismissal due to your involvement in trade union activities.
- Work-Related Injury: Dismissal while you are on sick leave due to a work-related injury.
- Giving Evidence: Dismissal for giving evidence or information in proceedings under the Employment Ordinance.
Remedies for Unfair Dismissal
If you are found to have been unreasonably or unlawfully dismissed, you may be entitled to various remedies, which can include:
- An order for reinstatement (getting your job back) or re-engagement.
- An award of terminal payments.
- For unreasonable and unlawful dismissal, an additional award of compensation not exceeding HK$150,000.
What to Do If You Are Illegally Terminated
If you believe you have been unfairly or unlawfully dismissed, it is crucial to act promptly to protect your rights:
- Gather Documentation: Collect all relevant documents, including your employment contract, pay slips, any correspondence related to your dismissal, and records of your work performance.
- Seek Legal Advice: Employment law can be complex. Consulting with legal professionals specializing in employment law can help you understand your specific situation, assess your rights, and determine the best course of action.
Protect Your Rights: Contact Us Today
Navigating employment termination can be challenging, but you don’t have to do it alone. At TITUS, we are dedicated to protecting the rights of employees in Hong Kong. If you have questions about notice periods, unfair dismissal, or believe you have experienced illegal termination, contact us immediately for expert legal advice and support.
Tel： 3702 0045
Email: info@titus.com.hk
Keywords: notice period, unfair dismissal, illegal termination
References: [1] Labour Department. (n.d.). Abolition of MPF Offsetting Arrangement. Retrieved from https://www.labour.gov.hk/eng/news/aoa.htm [2] Labour Department. (n.d.). Chapter 10: Employment Protection. Retrieved from https://www.labour.gov.hk/eng/public/wcp/ConciseGuide/10.pdf [3] Labour Department. (n.d.). Chapter 9: Termination of Contract of Employment. Retrieved from https://www.labour.gov.hk/eng/public/wcp/ConciseGuide/09.pdf