1. Under what circumstances is there a break in the continuous employment?
If an employee is not employed continuously by the same employer for four 4 weeks or worked less than 18 hours in a week, the employment is no longer a continuous one.
To calculate whether there is a break, one must count every day (including, for example, a Sunday) in a week. If an employee works less than 18 hours for a particular week, the week cannot be counted and there will be a break in the continuous employment.
If an employee has stopped working for an employer for a period of time and later is re-employed by the same employer, the contract before the break and the new one after it will generally be treated as two separate contracts. An exception to the above general rule exists where there are mutual legally binding obligations on both sides to make and perform the second employment contract. In that case, the two contracts together constitute a "global contract". There must an irreducible minimum of obligation on each side to create a global contract. Merely a high expectation of "re-employment" is not sufficient if there was no mutual legally binding obligation of re-employment.
In the following examples, there is no break in the continuous employment:
- The employee fails to work due to sickness or injury exceeding 48 hours with a valid medical certificate in support.
- The employer has died but his/her receiver continues to employ the employees.
- The employer is a partnership and one of the partners becomes the new employer.
- The break is due to the custom of the trade or business.
- The time absent from work due to a lockout or strike does not break the continuous employment if the lockout or strike falls within the definition in section 2 of the Trade Unions Ordinance.
Print
Email