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Topic 8 Labour Law

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26 views19 pages

Topic 8 Labour Law

Uploaded by

yum27557
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Topic 8

Labour Law
TWO IMPORTANT ELEMENTS OF LABOUR LAW

• Employment contract
• Employment Ordinance (Cap. 57)
RIGHTS OF EMPLOYEE

• Wages
• Leave
• Protection from unlawful/unreasonable dismissal
• Compensation after being dismissed
EMPLOYMENT ORDINANCE

Section 2 Interpretation
wages(工資), subject to subsections (2) and (3), means all remuneration, earnings,
allowances including travelling allowances and attendance allowances,
attendance bonus, commission, overtime pay, tips and service charges, however
designated or calculated, capable of being expressed in terms of money, payable to an
employee in respect of work done or to be done under his contract of employment, but
does not include:
(c) any commission which is of a gratuitous nature or which is payable only at the
discretion of the employer
NEW BRIGHT INDUSTRIAL CO. LTD. V WONG
(1995) HCLA 66/1994

Fact:
The employer dismissed the employee and they had a dispute on whether the Over limit bonus
should be included in the wages.
It was stated in the contract that “OVBN is designed to encourage employees to work
positively. Piece-rated calculation method is not adopted by the company. Therefore, even the
employees fail to achieve the basic quota, the company will not deduct their wages. The
company manufactures over tens of different products everyday. The quantity, style and difficulty
of each product vary, so as the amount of bonus obtained by the employees everyday.”
Issue: Should OVBN be included?
CHOW V FONG’S NATIONAL ENGINEERING CO. LTD.
[1996] 2 HKLR 52
Fact:
Although the employment contract stipulated that the working hours were 8:10 am to 5:00 pm, the employee
inevitably worked until 6:00 or 7:00 pm.
Evidence actually indicated that the employer expected the employee to work until 7pm.
Free transportation was also provided to employee who worked overtime.
In return the employer paid “overtime pay" and "attendance bonus or diligence bonus” regularly.
Issue:
Could the employees recover these “overtime pay" and "attendance bonus or diligence bonus” after termination
of employment contract?
LEAVES THAT ARE ENTITLED UNDER THE LAW

• Rest days (休息日) - (section 17)


• Statutory holiday leave (法定假日) - (section 39)
• Paid leave (有薪假期) - (section 41AA).
• Sick leave (病假) and sickness allowance (疾病津貼) - (section 33(4)) and (section
33(2))
HOW TO DISMISS AN EMPLOYEE?

• Dismissal by notice
• Dismissal by payment in lieu of notice
• Summary Dismissal (Section 9 of Employment Ordinance)
SECTION 9 OF EMPLOYMENT ORDINANCE

Section 9 Termination of contract without notice by employer


(1) An employer may terminate a contract of employment without notice or payment in lieu—
(Amended 51 of 2000 s. 2)
(a) if an employee, in relation to his employment—
(i) wilfully disobeys a lawful and reasonable order;
(ii) misconducts himself, such conduct being inconsistent with the due and faithful discharge of his duties;
(iii) is guilty of fraud or dishonesty; or
(iv) is habitually neglectful in his duties;
LAWS V THE LONDON CHRONICLE (INDICATOR
NEWSPAPERS) LTD [1959] 1 W.L.R. 698
Fact:
There was a business meeting which the plaintiff had been required to attend.
The plaintiff's immediate supervisor had a fight with the chairman and managing director.
The immediate supervisor left the meeting and asked the plaintiff to leave together.
The director told the plaintiff to stay but the plaintiff left. The director dismissed the plaintiff for
disobeying the order.
Held:
This single act of disobedience did not justify the summary dismissal of the plaintiff; it was not an act
showing a wilful disregard of the essentials of the contract of service which amounted to a
repudiation of the contract by the plaintiff.
WILSON V RACHER [1974] ICR 428

Fact:
The employee was a head gardener.
He ceased to finish the work on Friday due to heavy rainfall.
The next day the employer shouted at the employee for not finishing the work.
The plaintiff tried to explain but the employer refused to listen.
The plaintiff used obscene language to response and the employer dismissed him.
Issue:
Summary dismissal due to misconduct?
NG V OPEN UNIVERSITY OF HONG KONG
[2006] 2 HKLRD 228
Fact:
A lecturer worked for a University.
She was responsible for monitoring the markings of assignments.
She did not perform the duty and later discovered by the University.
She submitted monitoring forms for markings that were done before the year of 2000, but the
forms that she used was a new version of form that was published after Jan 2000.
Issue:
Fraud and dishonesty?
GARLITZ INVESTMENT LTD. V HUI [1996] HKLY 739

Fact:
The employer was an operator of some outlets and dismissed an employee for the following reasons:
i) Refused to relocate to another shop;
ii) Late for work for three times;
iii) Reading magazine at work for two times;
iv) Bad attitude towards supervisor.
Warning letters were issued before the dismissal.
Issue:
Justifiable to dismiss under section 9?
UNLAWFUL DISMISSAL

• Dismissing employees who are on paid sick leave (section 33(4B))


• Dismissing pregnant employees (section 15)
REMEDIES FOR UNLAWFUL DISMISSAL

• Unpaid sickness allowance / unpaid payment for maternity leave


• 7 days’ wages / one month’s wages
• An amount up to $150,000
• Reinstatement / re-engagement (or further compensation)
• Terminal payments
• Long service payment / severance payment
UNREASONABLE DISMISSAL

Employers are forbidden to dismiss those employees who have been employed for 2 years
or above for reasons other than those stated in the Ordinance and where the
dismissal is made to avoid compensation payment to the employees which they would
otherwise entitle to (section 32A)
UNREASONABLE DISMISSAL

Exceptions:
• Redundancy (裁員) (section 31B(2))
• Incapability of the employee
• By reason of the conduct of the employee
• Lay-off (停工) (section 31E)
REMEDIES FOR UNREASONABLE DISMISSAL

• Reinstatement / re-engagement (or further compensation)


• Terminal payments
• Long service payment / severance payment
TUTORIAL QUESTION

Mary is the HR manager of company A. Mary wants to seek your advice on whether she can
immediately dismiss the below five different “challenging employees”:
▪ Employee A: Gamble with other colleagues with cash during lunch time
▪ Employee B: Refuse to perform outdoor job duty during black rainstorm signal
▪ Employee C:Taking away the toilet paper of the company
▪ Employee D: Receiving a secret commission from the client
▪ Employee E: Accessing Mary’s computer without the permission of Mary
Advise Mary.

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