Topic 8

Labour Law
TWO IMPORTANT ELEMENTS OF LABOUR LAW
pontim
workinghour Inpayment
• Employment contract
wages
• Employment Ordinance (Cap. 57)
gnlatim
Holidays
Materig
allowance
snkleare
termination clause
Getridofmutualagreement
asknewemphyertopayyou
 RIGHTS OF EMPLOYEE

• Wages
to terminate
• Leave
_huh
A • Protection from unlawful/unreasonable dismissal
• Compensation after being dismissed
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Wages.Depends on nature_Fixed
Gratuitous Discretion
EMPLOYMENT ORDINANCE
Nages_title to claim nhenbeingmghmnsed
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:
賞贈性質
(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? Payable at thediscretion the
employer
Notfixed_No amount stated mewages
Ncacuhnmehod
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.

⼝
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?

Employer_not seated ntkempgmentantratsnuttixedpm

Notwages
Held Ourtime pay_nagesr
natureof pmt suggestthis Ba fixedpayment
 _entitled toclaimourtime payment

LEAVES THAT ARE ENTITLED UNDER THE LAW

• Rest days (休息日) - (section 17) lastdaypuneek

• Statutory holiday leave (法定假日) - (section 39)red days
• Paid leave (有薪假期) - (section 41AA).
A daysper yr
• Sick leave (病假) and sickness allowance (疾病津貼) - (section 33(4)) and (section
33(2))
shpth3
HOW TO DISMISS AN EMPLOYEE?

• Dismissal by notice normally one month

• Dismissal by payment in lieu of notice
代通知⾦ phlhmissal
• Summary Dismissal (Section 9 of Employment Ordinance)

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hating me of requirement
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;

think
(iii) is guilty of fraud or dishonesty; or
(iv) is habitually neglectful in his duties; commita serious careless
I keep
ammit.mg
careless miles
 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:
服務合同的要点
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

拒絕 repudiation of the contract by the plaintiff.

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notstay in the anhenuroom
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:
manage garden
Mandy
f
Summary dismissal due to misconduct?

misconduct
But not serious enough hate the essential
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I_using obsane language misconduct

is
NG V OPEN UNIVERSITY OF HONG KONG
[2006] 2 HKLRD 228
zr

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?Yes fraud DBhonesty
hhut cannotbehemmed
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; Dang it mumnw
iii) Reading magazine at work for two times; Accumulate serious
iv) Bad attitude towards supervisor.
Employer Batnq ⼆
Warning letters were issued before the dismissal.
Issue:
_D gire
employee chame

⼼ 2hhneofbadutimst
Justifiable to dismiss under section 9?

neghthh.hn dug employees

UNLAWFUL DISMISSAL

• Dismissing employees who are on paid sick leave (section 33(4B)) Employees can
• Dismissing pregnant employees (section 15)
J get remedy
 Get D 40
10 30 15060
REMEDIES FOR UNLAWFUL DISMISSAL

D
上
• Unpaid sickness allowance / unpaid payment for maternity leave

懋 在pgant employees
• 7 days’ wages / one month’s wages
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• An amount up to $150,000 ampensatim 在
• Reinstatement / re-engagement (ornrnnalgiusreenagemengěy
further compensation) 40Compensation
• Terminal payments
Any outstanding stopat40
employees
• Long service payment entud
/ severance toammqnfnuuupt
payment get employee his
Gfnthosewho 2yrs _Getto
wukfw75yrs
 not lantulhmissal
UNREASONABLE DISMISSAL not unlanhldnmnsal

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)

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Unreasonable Bmnsal
UNREASONABLE DISMISSAL

Exceptions:
Foreignercompany
decidedto move
out of Hk
• Redundancy (裁員) (section 31B(2))
• Incapability of the employee Mer'shienhe Nassupndd_Nocapabihgt
wwkasadirer
• By reason of the conduct of the employee misundut
anymore
• Lay-off (停工) (section 31E)
Employercouldn'tprovide U jobwithina period4time
again_waiter
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”:
_notafhe theessentials
▪ Employee A: Gamble with other colleagues with cash during lunch time
of anhalseruze
order
▪ Employee B: Refuse to perform outdoor job duty during black rainstorm signal unreasonable
▪ Employee C:Taking away the toilet paper of the company
tnudlnhmesglmetimeserious
▪ Employee D: Receiving a secret commission from the client enough
seriousmisconduct
▪ Employee E: Accessing Mary’s computer without the permission of Mary ⼗fraud
Advise Mary. Genius enonm
fraud Dnhmesg