2. Unreasonable variation of employment

2. Unreasonable variation of employment

Variation of the terms of an employment would be unreasonable if:

1. the employee has been employed under a continuous contract;
2. the terms of the employment contract are varied without the employee’s consent and the employment contract does not contain an express term that allows such a variation; and
3. the employer has not shown any valid reason for the variation as specified in section 32K of the Employment Ordinance

Point (3) above means that, to determine whether a variation of the terms of employment is “unreasonable” or not, we have to see whether there is any “valid reason” for the variation.

Under section 32K of the Employment Ordinance, there are five reasons for variation of the terms of an employment that are “valid”. They relate to:

1. the conduct of the employee;
2. the capability or qualification of the employee to perform work;
3. redundancy or other genuine operational requirements of the business;
4. statutory requirements; or
5. other substantial reasons.

With regard to point (a) above, there are many examples of employees'’ misconducts which may be considered as valid reasons for variation of employment terms. These examples include: persistent lateness, drunkenness during working hours and disclosing confidential information, etc. Reasons for summary dismissal  are also included (see “Summary dismissal”).