香港劳动法比大陆，对劳动者的保护程度要高 （合同解除篇）

上海滩律师

香港劳动法比起大陆，对劳动者的保护程度要高

本文（合同解除篇）是本人研读香港雇佣条例后，得出的一个初步总结。

1. Termination of employment

1.1 payment, to which dismissed employee may entitle

A. termination payment

Terminal payments refer to the statutory entitlements that an employee is entitled to but has not yet been paid upon dismissal.
These payments include -
(a) wages;
(b) payment in lieu of notice;
(c) end of year payment;
(d) maternity leave pay;
(e) severance payment or long service payment;
(f) sickness allowance;
(g) holiday pay;
(h) annual leave pay; and
(i) any other payments due to the employee under the Employment Ordinance and his contract of employment.

An employee may be awarded terminal payments even if he has not attained the qualifying length of service required for the entitlements. In such case, the terminal payments shall be calculated according to his actual length of service.

B. severance payment
An employer should pay severance payment when an employee, who has been employed under a continuous contract for not less than 24 months, is dismissed by reason of redundancy or is laid off.
Calculation of severance payment:

Monthly-paid
employee:  (monthly wages X 2/3)* X reckonable years of services  
Monthly wages should not exceed 2/3 of $22,500.

C. payment for wages in lieu of notice
In the case of a continuous contract of employment, the length of notice or the amount of wages in lieu of notice required are with agreement to the length of notice
as per agreement, but not less than 7 days


Average monthly wages earned by an employee
in the 12-month period before the day when a notice of termination of contract is given*  X  Number of months specified in the notice period  =  Wages in lieu of notice  


In the case of a continuous contract of employment, the length of notice or the amount of wages in lieu of notice required are without agreement to the length of notice
not less than 1 month
  

Average monthly wages earned by an employee
in the 12-month period before the day when a notice of termination of contract is given*  X  Number of months specified in the notice period  =  Wages in lieu of notice  

D. compensation ordered by Labour Tribunal
See 1.2 B second paragraph.

1.2 liability, to which employer may be liable

A. Dismissal in the following circumstances contravenes the law:
(a) dismissal of a pregnant employee;
(b) dismissal whilst the employee is on paid sick leave;
(c) dismissal by reason of an employee giving evidence or information in any proceedings or inquiry in connection with the enforcement of labour legislation, industrial accidents or breach of work safety regulations;
(d) dismissal for trade union membership and activities; or
(e) dismissal of an injured employee before the parties concerned have entered into an agreement for employee's compensation or before the issue of a certificate of assessment.

B. For unreasonable and unlawful dismissal, the Labour Tribunal, in considering the case, may order -
(a) reinstatement/re-engagement of the dismissed employee (subject to the mutual consent of both the employer and employee); or
(b) an award of terminal payments against the employer.

Where no order for reinstatement of re-engagement is made, the Labour Tribunal may also award compensation to the employee not exceeding an amount of HK$150,000, irrespective of any award of terminal payments, in appropriate cases.

For unreasonable dismissal, the Labour Tribunal, in considering the case, may order -
(a) reinstatement or re-engagement of the dismissed employee (subject to the mutual consent of both the employer and employee); or
(b) an award of terminal payments against the employer.

2. Maternity

2.1 The employer is liable to prosecution and, on conviction, a fine of HK$100,000.
2.2 He is also required to pay the dismissed employee:
(a) wages in lieu of notice;
(b) a further sum equivalent to one month's wages as compensation; and
(c) 10 weeks' maternity leave pay if, but for the dismissal, she would have been entitled to such payment.
2.3 The employer is also liable to the claims raised by the employee if the employee is dismissed other than for a valid reason as specified
in 1.1 and 1. 2 above.