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Shuffling of human resources and people moving in and out of companies fluidly is not uncommon in modern commercial settings. While this can happen on a voluntary basis, there are times when termination decisions, for a variety of reasons, must be made at a company’s end, especially during times of an economic downturn. Unfortunately, not every termination is well taken. At times, it can be dreadful and upsetting for employees who find the dismissal unfair, unjustified, or even unlawful. This article explores the options an aggrieved employee has in Hong Kong and the points to bear in mind when faced with a potential employment claim.
Author: Chloe Lau, Associate
Wrongful dismissal: breach of terms
In general, a wrongful dismissal is one where an employee has been dismissed in breach of the terms agreed upon with an employer. Hence, if an employer terminates an employee by breaching certain terms in the employment contract, such as a termination with a notice period falling short of what is stipulated in the contract, or an immediate termination in absence of valid grounds, it may be considered a case of wrongful dismissal.
Return to the negotiation table with your former employer – conciliation at the Labour Department
Before resorting to legal means and lodging a formal complaint for wrongful dismissal, an employee is encouraged to try and resolve the reasons for dismissal with the employer. An amicable settlement is, in most cases, considered an efficient, effective, and a win-win solution.
A viable option is to attempt conciliation through the Labour Relations Division of the Labour Department. Conciliation services are informal, time-saving and relatively simple procedures to help resolve labour disputes, which are accessible to both employers and employees and provided free of charge.
In case of a labour dispute, an aggrieved party may approach one of the branch offices of the Labour Department (https://www.labour.gov.hk/eng/tele/lr1.htm) for a personal meeting with an officer; making an appointment for such a meeting beforehand is not required. An interview will be conducted during which the officer seeks to understand the issues involved and explains to the aggrieved party the relevant legal provisions and procedures.
If the party concerned requires conciliation service, a conciliation officer will be assigned to the case, and a meeting for the purpose will be arranged. A notice will be issued to the counterparty, who will be invited to participate in the conciliation meeting at the scheduled time and date. Due to its informal nature, subject to the consent of the other party, it is possible to have the conciliation meeting conducted online or by way of a telephone conference. Hence, this may be an option even for aggrieved employees who have decided to depart from Hong Kong following the termination.
Further, subject again to the counterparty’s consent, legal representation may be permissible. This would mean that the complainant, whether located in Hong Kong or overseas, has the opportunity to be represented by a legally trained person throughout the conciliation process. Unlike a claim at the Labour Tribunal where legal representation is strictly prohibited, the involvement of legal representatives potentially enhances prospects of a fruitful negotiation between the parties, and hence should be considered an additional benefit to a conciliation attempt prior to lodging a formal claim at the Tribunal.
At the conciliation meeting, the conciliation officer, who serves as a neutral intermediary, would facilitate both parties in exploring the gist of the issues and in dissecting the situation. The parties’ attention may be drawn to the relevant terms of the employment contract and the applicable statutory regulations, through which a mutually agreeable settlement is hopefully reached.
If the parties successfully reach an agreement, a settlement agreement may be executed by the parties for documenting the terms agreed upon, and if the settlement agreement involves monetary compensation, the conciliation officer may assist in making necessary arrangements for effecting the payment.
It is noteworthy that attendance at conciliation meetings is voluntary for both the employee and the employer. If either party fails to attend the conciliation meeting, or no settlement is reached between both parties at the meeting, the conciliation officer may either arrange another conciliation session, or, at the request of the party concerned, refer the matter to and make an appointment with the Labour Tribunal, where the aggrieved party may formally lodge a claim against the other.
Resorting to legal battles – lodging a claim at the Labour Tribunal
As illustrated above, in case of a referral from the Labour Department, it is likely that an appointment with the Labour Tribunal has been scheduled by the conciliation officer. On the other hand, if an employee decides to resort to legal proceedings without attempting a negotiation, he should first schedule an appointment before visiting the Labour Tribunal in person to file a claim, which can be done via the Telephone Appointment Booking System of the Labour Tribunal (+852 2625 0056) or via the website of the Judiciary.
On the appointment date, the employee should report at the scheduled time to the Registry of the Tribunal. The employee will be asked to verify the name of the contact person and the address of the Defendant company. It is crucial to ensure accuracy of these particulars to warrant effective service of documents on the Defendant.
Analogous to the procedures at the Labour Department, a Tribunal Officer will interview the Claimant to understand the details of the subject employment and the issues in dispute, based on which a Form 1 (Title to Claim), bearing the names and addresses of both Claimant and Defendant; and a Form 2 (Form of Claim), containing the details of the claim, such as the claim item(s), the head(s) of claim and its/their respective amount(s), and calculation showing how the amount(s) is/are arrived at, will be prepared by the Tribunal Officer.
Upon successful filing of the claim, a hearing date within one month from the claim filing date will be fixed, and a hearing notice will be issued and served by the Tribunal together with the claim particulars on the Defendant company.
The Tribunal Officer allocated to the case will then investigate the claim and discuss with the parties as to whether there is any possibility of amicable settlement.
If there is no settlement prospect, the parties are required to attend the Labour Tribunal for a ‘call-over hearing’. Both parties must attend the ‘call-over hearing’, and the absent party bears the risks of having the claim being struck out, or facing an adverse decision.
At the ‘call-over hearing’, the Presiding Officer will once again explain the issues and the relevant laws to encourage a settlement. If settlement is, again, found to be impossible, the case will be adjourned and listed for a mention and/or a trial.
While mention is usually a brief hearing for the purpose of assessing whether all documentation is in order for trial and/or giving directions for the advancement of the case, a trial is a formal examination of evidence with substantive legal submissions and witnesses’ testimonies, which every so often lasts for several consecutive days.
At trial, the Presiding Officer will hear each party’s contentions, allow the Claimant and Defendant to question one another as well as their respective witnesses (examination-in-chief and cross examination), and if necessary, order the parties to provide supplementary evidence or to call additional witnesses and have the hearing adjourned to a later date. At the conclusion of the trial, a date for delivery of decision will be fixed, upon which the case is considered to have come to an end, unless either party decides to apply for a review of or an appeal against the decision.
Statutory Time Limits on Employment Claims
In general, an employee who wishes to claim remedies against his former employer on the grounds of unreasonable/unlawful dismissal is required to serve a written notice in respect of his claim to the employer within three months from the effective date of the termination.
The three-month time limit applies especially in situations where the subject claim includes, among others, a claim for severance payment. It is noteworthy that if long service payment in case of death of an employee is concerned, a shorter time limit of 30 days after the death of the employee applies instead. The abovementioned time limits may, on a case-to-case basis, be extended at the discretion of the Commissioner for Labour for a period of up to six months.
If an employee wishes to file a claim with the Labour Tribunal, he must, in any event, do so within nine months from the effective date of termination of employment.
In any event, in case of a dispute arising out of or in connection with a termination of employment, the employee concerned is advised to seek legal guidance and take appropriate action as soon as practicable to avoid unnecessary delay and ensure due compliance with all statutory time limits relevant for the claims.
Read more about a case study we published on employment termination here (click).
Disclaimer: Whilst every effort has been made to ensure the accuracy of this article it is general in nature and does not constitute legal advice of any kind. You should seek your own personal legal advice before taking legal action. We accept no liability whatsoever for loss arising out of the use or misuse of this article.
For specific advice about your situation, please contact:
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+852 2388 3899
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