Legal Article – 6

I am a permanent resident of Hong Kong. I work as casual worker for a Philippine products store in North Point since year 2001. I work 3x a week, Fridays to Sundays from 11 am to 7pm. I am now 6 months pregnant and I gave notice to my boss about my maternity leave starting in my 8^th month of pregnancy. My boss said I can take off anytime but I am not entitled to maternity leave with pay. I was shocked at his response and asked why I am not entitled to maternity with pay. He answered; he can dismiss my services anytime. I am thinking of resigning but in doubt if I am also entitled to long-service pay after more than 6 years of working for the same company? Please advice. Tessa B., North Point

General Rule

The general rule is that casual temporary worker has a temporary contract of employment, which falls outside the protection of the Hong Kong Employment Ordinance. You are not entitled to receive paid holidays, sickness leave, severance pay, maternity leave and long-service- pay. But even with the temporary contract of employment in force, you are entitled to take your boss/employer to the Labour Tribunal over disputes concerning the employment contract.

Continuous Employment

In the particular above, Tessa may be able to argue that she is a permanent worker as she’s been in continuous employment since 2001. The test is that the worker has been employed for a continuous period of 4 weeks and in each of the 4 weeks, he worked 18 hours or more. Tessa worked 3x a week for 7 to 8 hours a day. That is 21 to 24 hours of work per week for the last 6 years.

Tessa is protected by the Employment Ordinance, which is designed to prevent scrupulous employers from creating artificial temporary casual employment contracts and avoiding the need to pay for holidays, sick leave, and maternity benefits. While there are certain casual workers who work when there is a need, on an on-off basis, Tessa’s case is a regular work of 3x a week, a continuous employee, entitled to the full protection of the Employment Ordinance.

Burden of Proof

The employer will have the burden of proving that Tessa is not continuously employed at the store. It is possible that Tessa worked for 6 years but there are weeks that she worked less than 18 hours, breaking the continuity. Examples: alternate weekends Tessa does not work or every 3^rd weekends Tessa only work 15 hours.

Majority of cases in Hong Kong involve the issue of continuity of contract when the business is transferred from one person to another. The test of continuity is whether the business was transferred as a going concern, remains the same business, operations did not stop, just plain transfer of ownership, then the Labour Tribunal will decide that there is continuity of contract. The employer breaking the terms of the employment contract is liable under the Employment Ordinance for all the relevant payments to the employee including severance and or long-term service payments.

Severance Payments

A casual employee who has been employed under a continuous contract of employment for not less than 24 months ending on the day of dismissal because of redundancy, or is laid off within the meaning of the Employment Ordinance is entitled to severance payment. Redundancy exists when the company closes down or moves elsewhere; the business is moved outside the territory or from Hong Kong to New Territories or Kowloon; and the employer requires a smaller workforce. Tessa has continuously worked for more than 2 years and if dismissal is due to redundancy, she can claim for severance pay. Tessa must speak with the employer. Both must be fair and reasonable in the circumstances.

Long Service Payments

Long Service Payment is for continuous employment over a long period of time. Tessa working for 6 years is long and if the employer dismisses her, she can claim payment. Please note Tessa should be dismissed. But if Tessa resigns, she is not entitled.

This is particularly important to our kababayans. It is common for employers not to renew the domestic helper’s contract the 3^rd time as it would trigger long service payments should they decide to dismiss the DH afterwards. After 2 contracts, employers will hire a new employee thus avoiding possible long service payments. If the DH continuously worked for the same employer for 5 years and was dismissed afterwards, then the DH must claim for long-term service payment as it is assumed the employer did so to avoid the long service payment.

Maternity Leave and Pay

A female employee is entitled to take maternity leave if she worked for the same employer under continuous contract for not less than 26 weeks immediately before the date that she expects to start maternity leave. Once she gives notice of maternity leave, the employer cannot terminate the employment till the employee is due to return to work. If the contract is terminated, the employer is liable to pay wages in lieu of notice.

An employee is entitled to maternity leave with pay if she worked continuously for the employer for not less than 40 weeks before the expected date of her maternity leave. The leave pay is for period of 10 weeks that normally begins 4 weeks before the expected date of confinement and ends 6 weeks after the date of birth. Maternity leave pay is 4/5 of the employee’s normal wages and is payable for a maximum of 10 weeks. Therefore, Tessa is entitled to maternity leave with pay for maximum period of 10 weeks.

If Tessa happens to be a Domestic Helper, she is also entitled to the same maternity leave with pay and if the employer terminates her DH contract during the maternity leave, the employer is liable to prosecution and to pay 10 weeks wages. After the maternity leave, termination of contract resumes by giving one-month notice or one month wages in lieu. So, dahan dahan sa pagbubuntis mga kababayans, baka mawalan ka ng trabaho!

Anniversary Greetings

Here is to Bountiful blessings for the 2^nd Anniversary of Friends International Magazine. Palaging nagsisikap na magbigay ng mga babasahing makakatulong sa ating mga OFWs sa Hong Kong. Pwedeng talakayin ang kahit anong usapin at pwede ring magbigay ng mga kuro-kuro kung paano makibaka sa buhay. Congtatulations and more success in the years ahead!

Ody A. Lai

Barrister at law