Unlawful and Summary Dismissal

What is dismissal?

Dismissal is when the employment contract between an employer and employee ends or finishes. Dismissal means firing someone from their job and it is the most serious action that an employer can take. When ending the employment of someone, the employer can fire you with notice or without notice. Giving notice means that the employer tells their migrant domestic worker (‘MDW’) that they will not renew their contract for example. An employer can also fire their MDW without notice, which means that the MDW’s employment will stop immediately.

Sometimes, when ending an employment contract, the employer or MDW may need to pay money instead of giving notice – this is known as payment in lieu of notice (i.e. payment instead of notice).

Sometimes an employer may fire their MDW illegally. This is known as unlawful dismissal.

Unlawful dismissal: when is it illegal to fire someone?

Under the Employment Ordinance, there are 5 situations when it is illegal to fire someone, including MDWs:

1. When the MDW is pregnant and has shown her employer the pregnancy certificate
2. When the MDW is on paid sick leave, if the MDW has shown their employer their sick leave certificate
3. When the MDW has given evidence against the employer in any legal case
4. When the MDW has joined a trade union
5. When the MDW was injured at work and has not received any compensation (money) from the employer or reached a settlement

Summary Dismissal

Another situation where an employer can fire their MDW without notice or payment instead of notice is through summary dismissal. When an employer is using summary dismissal, it usually means that the MDW has done something (or failed to do something) that has serious consequences.

Under Hong Kong law, an employer can dismiss their MDW without notice or salary instead of notice if the MDW:

1. Intentionally (knowingly) / willfully disobeys a reasonable and legal order from their employer
2. Misconducts
3. Is found guilty of fraud or dishonesty in court
4. Is regularly neglectful in her duties

Can I end my contract without notice or payment instead of notice?

Under Hong Kong law, an MDW can also end her employment with her employer without giving the employer notice or payment instead of notice if she is being abused or is in a dangerous condition in her employment. An MDW can end her employment contract without notice if:

1. The MDW reasonably fears physical danger because of violence or disease
2. The MDW is treated badly by her employer
3. The MDW has been working for less than 5 years for the employer and a doctor has certified that the MDW is permanently unfit for her work

What can I do if I was fired/dismissed and I think it was unfair?

There may be a time when your think your employer has unfairly fired you, or fired you unreasonably. Under the Employment Ordinance, you can file a case for remedies (a solution) against your employer. To do this, you have to:

1. Be employed under a continuous contract – this means you must have worked for your employer for more than 4 weeks and you worked more than 18 hours a week;
2. Your employment contract is valid for 24 months (i.e. 2 years;)
3. Additionally, your employer must have either:
   • Changed the terms of your employment contract and you did not agree to the change (for example: your employer tells you to go work at their mother’s house. This is not in your employment contract because your working location is your employer’s address, not his mother’s address)
   • Changed the terms of your employment contract but the changes are not allowed under the Employment Ordinance

How can I submit my case?

Normally, the first step is to go to the Labour Department and submit your case. First, the Labour Department staff will help you and your employer come to an agreement without going to court. This will help both you and your employer save time and money.

If you and your employer cannot agree on how to resolve the issue, you can submit your case to the Labour Tribunal. In the Labour Tribunal, you will represent yourself (no lawyers are allowed to represent you) in front of the judge. The judge will then decide if you are allowed to get a remedy/solution.

The Labour Tribunal judge may decide to either:

1. Put you back into work with your employer, if both you and your employer agree; OR
2. Order your employer to pay you money for firing you without a good reason

Helpful Tips

• Take good care of your documents and make sure you make copies. Keep your employment contract, employer’s full name and contact details (phone number, email, address) and all evidence safely.
• If you are planning to rely on WhatsApp messages, photos or videos as evidence, make sure you keep these safely.
• Be aware that a labour case can take a long time and get help if you need it. You have to think about your visa, your living needs and how you will take care of yourself. Consider contacting a legal advisor or NGO for help.