Common Employment Disputes

Transcription

1 Common Employment Disputes Date: 25 February 2014 Time: 7:00 pm to 8:30 pm International Facility Management Association Hong Kong Chapter Presenter: Samuel Li Solicitor Notary Public Civil Celebrant of Marriages

2 Agenda (A) Application of the Employment Ordinance (B) Contract of Employment (C) Wages (D) Termination of Contract of Employment (E) Employment Protection

3 (A) Application of the Employment Ordinance Applies to all employees Exceptions: Family member Contracts for employment outside Hong Kong ordinance Crew agreement Apprentice S4

4 (A) Application of the Employment Ordinance Who are employees Majority of Cases: 1) Regular and stable and jobs 2) doing work assigned to them 3) Supervised by boss 4) Regular wages & other benefits by return Obviously employees

5 (A) Application of the Employment Ordinance Casual workers: Note cases : Lee Ting Sang v Chung Chi-kong & Other [1990] 2 WLR 1173 Cheng Yuen v The Royal Hong Kong Golf Club, Privy Council

6 (A) Application of the Employment Ordinance Poon Chau Nam v Yim Siu Cheung t/a Yat Cheung Air-conditioning & Electric Co CFA, Welding rod collapsed, fragment into the eye Ruling: ALL Features to be considered Control-Little relevance D:-assigned jobs and paid P, D s Business, equipment, P/L P-no F risk, nor reward beyond wages, no helpers, purchased work items reimbursed Label did not change picture Casual Employee under ECO, not determination of casual employee under MPF (Cap 485) (p 2)

7 (A) Application of the Employment Ordinance Basic protection (ALL employees) : Payment of wages Restrictions on wages deductions The granting of statutory holidays, etc.

8 (A) Application of the Employment Ordinance If employed under a continuous contract: Rest days Paid annual leave Sickness allowance Severance payment Long service payment, etc.

9 (A) Application of the Employment Ordinance Continuous Contract 4 weeks or more, with at least 18 hours Onus on the employer S3 (p 1)

10 (B) Contract of Employment Orally or in writing Express and implied terms Free to negotiate Do not violate provisions of the Employment Ordinance Extinguish or reduce any right, benefit or protection shall be void

11 (B) Contract of Employment Information on Conditions of Service Employer must inform: wages wage period length of notice required to terminate the contract if entitled to an end of year payment, the end of year payment or proportion and the payment period.

12 (B) Contract of Employment If the contract of employment is in writing, the employer shall give one copy of the written contract to the employee for retention and reference.

13 (B) Contract of Employment If the contract of employment is not in writing, the employer shall provide the employee with such information in writing if the employee, before such employment is entered into, makes a written request.

14 (B) Contract of Employment Whenever there is any change in the conditions of service, whether these have merely been proposed to an employee or are actually in force, the employer shall inform him in an intelligible manner.

15 (B) Contract of Employment NOTE: Employers and employees should clearly understand: the wage components (e.g. commission, allowance) wage rate conditions and arrangements for payment, etc.

16 (B) Contract of Employment Joanne Kay Wood v Jardine Fleming Holdings Ltd HC, Investment banker employee dismissed, bonus formed large part of employee s remuneration, not paid Clause 2.2 Bonus reads :- You have no contractual entitlement to bonus but provided your employment is not terminated under the provisions of paragraph 7.4, the Company will at its discretion pay you an annual bonus each year in respect of your service with the Company during the previous year ending 31st December. The amount (if any) will depend on the financial results of the Jardine Fleming Group and on your own performance.

17 (B) Contract of Employment Joanne Kay Wood v Jardine Fleming Holdings Ltd HC, Ruling: Discretion not unfettered, not interfere unless irrationally or perversely-subjective Genuine and serious concern about work and behavior No evidence that no employer would exercise discretion that way Employee failed Justified no bonus Note: S 11 AA Presumption (1997)

18 (B) Contract of Employment Duration of employment contract S5 Deemed to be a contract for 1 month Renewable from month to month

19 (C) Wages Definition S2 include All remuneration, earnings, allowances, tips and service charges In respect of work done or work to be done. Allowances including travelling Allowances, attendance allowances, commission and overtime pay are within the definition of wages

20 (C) Wages Not include: 1. The value of any accommodation, education, food, fuel, water, light or medical care provided by the employer; 2. Employer's contribution to any retirement scheme; 3. Commission, attendance allowance or attendance bonus which is of a gratuitous nature or is payable only at the discretion of the employer; 4. Non-recurrent travelling allowance or the value of any travelling concession or travelling allowance for actual expenses incurred by the employment;

21 (C) Wages Not include: 5. Any sum payable to the employee to defray special expenses incurred by him by the nature of his employment; 6. End of year payment, or annual bonus which is of a gratuitous nature or is payable only at the discretion of the employer; 7. Gratuity payable on completion or termination of a contract of employment.

22 (C) Wages Calculated according to the definition of wages: End of year payment Maternity leave pay Severance payment Long service payment Sickness allowance Holiday pay Annual leave pay Wages in lieu of notice

23 (C) Wages Lam Pik Shan v Hong Kong Wing On Travel, CA, May 2008 Note this case on tips

24 (C) Wages Overtime pay included if : It is of a constant character; or Its monthly average over the past 12 months is not less than 20% of the average monthly wages of the employee during the same period. S2 OT everyday, so sad

25 (C) Wages Deductions Except: Deductions for absence from work (proportionate to the period of time the employee is absent) Deductions for damage to or loss of the employer's goods, equipment, or property by the employee's neglect or default. In 1 case NOT exceeding $300 Total NOT exceed one quarter of the wages Deductions for the recovery of any advanced or over-paid wages to the employee. NOT exceed one quarter of the wages Value of food and accommodation S32

26 (C) Wages Deductions Contributions to be paid by the employee for any medical scheme, superannuation scheme, retirement scheme Recovery of any loan made by the employer to the employee authorized under any enactment Outstanding maintenance TOTAL of all deductions, except those for absence from work shall NOT exceed 1/2 of the wages. S32

27 (C) Wages 麥 永 富 v 匯 進 髮 舍 HC hairdresser Deduct wages due to lateness Ruling: Court referred to S32(1) EO (Part VI) S32(2) EO S70 EO S32 not include late for work

28 (D) Termination of Contract of Employment By Notice or Payment in lieu of Notice S7 (p 3-4) Kao, Lee & Yip v Lau Wing & Others CFA, Young lawyer gave 3 months notice/payment in lieu of notice to terminate employment-only work 1 month, pay 2 months wages one lawyer had ½ day annual leave w/i 3 months period Ruling: Payment in lieu of notice can be made unilaterally- agreeing to pay not required acceptance s 7 (1A)-ie s 7 (1) mechanism unilateral Employee can give notice over a period which includes accrued annual leave entitlement s 6 (2A) was intended solely for benefit of employees

29 (D) Termination of Contract of Employment Without notice or wages in lieu of notice if (a): 1. Willfully disobeys a lawful and reasonable order 2. Misconducts himself 3. Is guilty of fraud or dishonesty; or 4. Is habitually neglectful in his duties S9 (b) Any other grounds to terminate without notice at common law

30 (D) Termination of Contract of Employment Tsang Tak Chi v China Wall Ltd HC, Sold 2 old machines at $4,000, terminated No previous misconduct/dishonesty Ruling: Standard of men, and not angels Single act for dismissal must be justified- It s a capital punishment Employee impact $160,000, cf $10,000 Dismissal was wrong

31 (D) Termination of Contract of Employment Chan Ching Man v Oriental Logistics Company Limited Male godown assistant touched disabled colleague hair 6 times within 1 month, and also her face Ruling: Dismissal justified - Employer s duty to provide safe and decent working environment - employees not subject to abuse or ill treatment from co. employees

32 (D) Termination of Contract of Employment Garlitz Investment Ltd v Hui Lai Ping HC, Landmark sales lady, refused to sign transfer letter, late 3 times, reading magazines 2 times, unacceptable attitude, 3 warning letters Ruling: Cumulative effect of conduct Summary dismissal justified, 1 mon wages $17,100, long service $153,425, food allowance $400 refused

33 (D) Termination of Contract of Employment An employee may terminate employment contract without notice or payment in lieu of notice if: He reasonably fears physical danger by violence or disease; He is subjected to ill-treatment by the employer; or He has been employed for not less than 5 years and is certified by registered medical practitioner or a registered Chinese medicine practitioner as being permanently unfit. S10

34 (D) Termination of Contract of Employment Constructive Dismissal 王 曉 秋 v 救 世 軍 港 澳 軍 區 HC, Circumstances of giving notice Ruling: Court needs to consider whether employer s reason was justified, summarized in a later ruling of Lythrum.

35 (D) Termination of Contract of Employment Constructive Dismissal Lythrum v Windsor Joailiers Ltd HC Circumstances of giving notice ER: Boss not satisfied with your performance at work. You leave today. EE : How the Co would deal with this matter if I do not resign? ER : Co would dismiss you, does not pay you balance of annual pay, does not give you any reference letter. EE : Decided to submit a resignation letter. ER : Gave salary for the month and reference letter (p 6; 9).

36 (D) Termination of Contract of Employment Statutory Restrictions Shall not dismiss: Maternity Protection Paid Sick Leave Giving evidence or information to the authorities Trade Union Activities Injury at Work

37 (D) Termination of Contract of Employment Statutory Restrictions Ngan Yu Chiu v New World First Bus Services Limited CA, New World Bus driver was dismissed during sick leave appeal period (p 15) Ruling: Wrong dismissal Circumstances for the S32 P (a) to (g) 7 factors to consider Max HK$150,000

38 (E) Employment Protection The part on employment protection of the employment ordinance aims at: Discouraging employers from dismissing or varying the terms of the employment contract in order to evade their liabilities Part VI A, S32A-S32Q (p 5)

39 (E) Employment Protection Valid Reasons for Dismissal or Variation of Terms of Employment Contract 5 valid reasons: The conduct of the employee The capability or qualifications of the employee for performing his work Redundancy or other genuine operational requirements of the business Statutory requirements (contrary to the law to allow an employee to continue to work) Other substantial reasons S32K

40 (E) Employment Protection Valid Reasons for Dismissal or Variation of Terms of Employment Contract Thomas Vincent v South China Morning Post Publishers Limited, CFA, Employee journalist with SCMP Terminated on notice on ground of plagiarism 1 month prior to 5 year of employment, i.e. 1 month before qualifying for long service payment Gave 1 month notice to terminate

41 (E) Employment Protection Valid Reasons for Dismissal or Variation of Terms of Employment Contract Thomas Vincent v South China Morning Post Publishers Limited, CFA, Ruling: Employee conduct amounted to serious professional misconduct for a journalist S32 K True, not trifling Not arbitrary

42 (E) Employment Protection Valid Reasons for Dismissal or Variation of Terms of Employment Contract Chan Kam Yau, Cheung Suet Ha v The Hong Kong University of Science & Technology DC, Change of MPF retirement plan, 2 staff, savings of HK$134,710 Staff did not agree to change of P Fund Plan Ruling: Judge found express term in employment, contract permitted variation, not protected by S32A If he were wrong, genuine operational requirement-2 people costs $134,710 was valid reason

43 (E) Employment Protection Making a Claim Notice within 3 months File a claim within 9 months

44 (E) Employment Protection Remedies Order of reinstatement or re-engagement S32N Award of terminal payments S32O Award of compensation S32P

45 (E) Employment Protection Award of Compensation A maximum of $150,000 Consider: The circumstances of the employer and the employee; The period of employment of the employee; How the dismissal took place; The loss sustained by the employee as a result of the dismissal; Possibility of the employee obtaining new employment; Whether the employee should bear any fault for the dismissal; and Any payments, including terminal payments, that the employee is entitled to receive in respect of the dismissal. S32P

46