Under Hong Kong labour law, an employment contract may be terminated before its expiry, either by the employer or the foreign domestic helper (FHD), provided that one month’s notice is given, or one month’s salary is paid in lieu of notice. Both parties must acknowledge the termination, and a written notice submitted to the Immigration Department.
In some cases, however, a summary dismissal is carried out. This happens when an employer terminates a contract without notice or payment in lieu of notice. Likewise, there are situations where an FDH may terminate the contract without notice or payment in lieu of notice. This article takes a closer look at the factors and conditions for such cases.
Summary Dismissal of Foreign Domestic Helper by Employer
A summary dismissal is serious disciplinary action that applies to cases where an FDH has committed serious misconduct, or failed to make improvements despite repeated warnings.
According to the Hong Kong Labour Department, an employer may summarily dismiss an FDH without notice or payment in lieu of notice if the FDH:
- willfully disobeys a lawful and reasonable instruction;
- is habitually neglectful in carrying out his/her duties;
- is guilty of fraud or dishonesty; or
- has committed serious misconduct.
Contract Termination Without Notice by Foreign Domestic Helper
On the other hand, there are situations where the FDH is the one who terminates the contract without notice or payment in lieu of notice. This applies to cases where the FDH:
- is subjected to ill-treatment by the employer;
- reasonably fears physical danger (violence or disease); or
- has been employed for not less than five years and is certified by a registered medical practitioner or a registered Chinese medicine practitioner as being permanently unfit for the type of work he/she is being required to do.
Notably, these situations must be supported by evidence and adequate justifications. Otherwise, the parties involved may have to undergo legal investigation and resolution processes.
Cases Where Summary Dismissal Does Not Apply
Meanwhile, there are circumstances where an employer should not summarily dismiss his/her FDH. A summary dismissal does not apply to these situations:
- The FDH is on paid sick leave;
- The FDH is confirmed to be pregnant and has given a notice of pregnancy to her employer;
- Dismissal due to trade union membership or activities;
- Dismissal before entering into an agreement with an FDH who is injured at work for employee’s compensation, or before the issue of a certificate of assessment; or
- Dismissal by reason of the FDH giving information or evidence in a legal process related to the enforcement of the Employment Ordinance or work accidents.
An employer who summarily dismisses an FDH in these situations commits an offence, is liable to prosecution, and may face a maximum fine of HK$ 100,000 upon conviction.
Summary dismissal and contract termination without notice or payment in lieu of notice often involve serious situations. In any case, evidence of misconduct or other reasons must be provided to justify the decision.
Moreover, to avoid such situations, FDHs should always be aware of their duties and responsibilities. At the same time, employers should know the rights and ensure the well-being of their employees.
Disclaimer: This article provides general information only and should not be perceived as legal advice. It should not used as the definitive basis for any legal process. For advice that suits your situation, please consult a legal professional or the relevant government body.