A. Implied terms and duties
Apart from the express terms in the contract of employment, there are also a number of implied terms that apply to an employment relationship which both the employers and employees have to comply with.
A. Implied terms and duties
Choosing a subtopic
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Matters related to the Employment Ordinance
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A. A brief explanation of a contract of employment
- 1. What is the duration of a contract of employment?
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2. What is a "continuous" contract of employment?
- 1. Under what circumstances is there a break in the continuous employment?
- 2. What are the legal implications if there is a break in the continuous employment?
- 3. Can employers elect to enter into a series of shorter employment contracts with breaks between them to avoid giving statutory benefits and entitlements to employees?
- 3. How can a "contract of employment" and a "contract for service by independent contractor (or self-employed person)" be distinguished?
- 4. I accepted a new job offer from a company with the understanding that I would begin work on a certain date. I gave one month notice to my current employer to terminate my employment contract. One week before I was to begin my new job, I received an email from the new company stating that they were holding off on any new recruitment as they were bringing new investors in. Since I had already given notice to my current employer (and new person hired and trained), I was left without employment. Is there any recourse to take against the company that offered me the new job?
- 5. Information and record keeping
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B. Remuneration
- 1. My secretary has damaged the computer in my office and I intend to deduct $3,000 from her salary this month for compensation. Can I make this deduction? When will I be entitled to deduct salaries from my employees?
- 2. My previous month’s salary is overdue by 10 days. Has my boss violated the law?
- 3. My previous month’s salary is one month overdue and my boss told me that he is unable to pay it. Has he breached the employment contract? Can I terminate my employment contract immediately and claim compensations?
- 4. My place of work has suddenly shut down and I haven’t received my salary since last month. I think that the company is in huge financial difficulty and it is likely to become insolvent. Do I have the chance to get back my salary (or part of my salary)?
- 5. If my employer is likely to become insolvent, then where can I seek assistance?
- 6. If I am late for work, can my employer deduct my salary?
- 7. Can an employer unilaterally reduce the employee's salary, arrange no-pay leave, or vary the contract terms?
- 8. Are princIpal contractors in building and construction works liable to pay wages of subcontractors' employees?
- 9. Do wages include discretionary commission or bonus?
- 10. Are employers required to pay year-end double pay or bonuses to employees?
- 11. How do I calculate my end of year payments? When will I receive the money?
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C. Termination of employment and the relevant payments
- 1. Constructive termination
- 1. Summary dismissal
- 1. Termination of fixed-term contract
- 1. Time of Making Termination Payments
- 2. Offences and Penalties
- 2. Termination by notice
- 3. Payment in lieu of notice
- 6. Suspension from employment
- 9. Wrongful termination
- 1. Post-termination restrictive covenants
- 1. Unreasonable termination
- 2. Unreasonable variation of employment
- 3. Unreasonable and unlawful termination
- 4. Compensation for unreasonable dismissal
- 2. I am an office clerk and my boss always orders me to move heavy goods inside the warehouse. I think that this is not commensurate with my job duties because my boss did not specify it duty during the job interview. can I resign without giving him prior notice or wages in lieu of notice?
- 2. I suspect that my sales executive has repeatedly sent client details to a rival company and I want to dismiss him. Can I terminate his employment contract immediately without giving him advance notice or wages in lieu of notice?
- 3. My employee was absent from work for a few days without reason. Can I dismiss him?
- 4. I am going to dismiss a staff member with one of the “valid reasons for dismissal”. Am I required to give him advance notice or wages in lieu of notice?
- 5. If I (as an employee) am facing unreasonable dismissal or unreasonable variation of the terms of my employment contract, then what can I do to protect my rights?
- 6. If I am unreasonably and unlawfully dismissed by my boss, then what can I do to protect my rights?
- 5. Do employers need to give reasons for termination?
- 5. Do employees need to serve notices of termination or make payments in lieu of notice if I back out of accepted job offers prior to their commencement dates?
- 3. Are employers under a legal obligation to provide an employee with a reference letter at the end of the employment relationship? Are they under a duty to exercise skill and care in preparing it?
- 2. What can employers do if a former employee misuses confidential information to set up a rival business?
- 4. Can statutory annual leave or maternity leave be included in the notice required to terminate a contract of employment?
- 7. As an employer, do I have to pay employee's wages during the suspension?
- 1. When is an employer required to pay a severance payment to an employee?
- 2. When is an employer required to pay a long service payment to an employee?
- 3. I am going to terminate the employment contract of one of my staff members. Can I use my previous contribution to his mandatory provident fund (MPF) to offset part of the severance payment/long service payment payable to him?
- 4. My employee has tendered his resignation and his last day of employment is the 30 September. He has 10 days of untaken annual leave. If he takes all the annual leave continuously from the 21 to the 30 September as final leave, when should I make the termination payments?
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D. Holiday/annual leave/sick leave/maternity leave and their relevant payments
- 1. Should employees receive salaries for their rest days?
- 2. My boss ordered me to work this Sunday (which is my usual rest day). Can I reject his order?
- 3. Do I enjoy a rest day if I am being "On call"?
- 4. I work from Monday to Friday every week. Saturday and Sunday are rest days. If a statutory holiday falls on Saturday, should the employer grant me a holiday in substitution?
- 5. Can employees volunteer to work on a rest day?
- 6. Should employees be paid for their statutory holidays?
- 7. Can I order my staff to work on statutory holidays by making substitute payments?
- 8. What is the difference between statutory annual leave and contractual annual leave?
- 9. What are leave year, common leave year and pro rata annual leave?
- 10. When can annual leave be taken?
- 11. What is the manner in which annual leave may be taken?
- 12. What happens to the accrued but unused annual leave in a leave year?
- 13. Can the employee opt for payment in lieu of statutory annual leave?
- 14. What happens when statutory rest days and holidays fall within the annual leave?
- 15. Can employers require their employees to take annual leave in the leave year in which it is accrued? If employees do not take all annual leave in the leave year in which it is accrued, can employers forfeit untaken annual leave?
- 16. How is sickness allowance calculated? When will I be entitled to sickness allowance?
- 17. My boss fired me during my sick leave for which I had a valid medical certificate. Has he violated the law?
- 18. My expected date of confinement is coming soon and I have served a notice of pregnancy to my boss. When can I commence my maternity leave?
- 19. Should I receive salary during my maternity leave?
- 20. One week after serving the notice of pregnancy, my employer fired me. Has he violated the law?
- 21. Since I notified my boss of my pregnancy, he sometimes assigns heavy work to me. I think that he wants me to resign so he can avoid paying compensation or avoid giving maternity leave. Can he do that?
- 22. Are employers entitled to apply to the government for reimbursement of maternity leave pay?
- 23. What should the male employee do to take paternity leave?
- 24. Should I receive salary during my paternity leave?
- 25. When can employees take paternity leave and do they have to take them all in one go?
- 26. Can employers require a male employee to provide a statement about detail of the child’s birth (such as the name of the mother)?
- 27. When do employers have to pay paternity leave pay?
- 28. What legal consequences will my employer face if he fails to grant statutory paternity leave or fails to pay statutory paternity leave pay?
- 29. Can an employer require employees to take unpaid leave?
- 30. Can an employee demand to take unpaid leave?
- Statutory sickness allowance and contractual sickness allowance
- The two categories of paid sick leave
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E. Mandatory Provident Fund (MPF)
- 1. My employer has not made any MPF contribution or contribution to other retirement scheme for me since the beginning of my employment. Has he violated the law?
- 2. Can employers reduce their employees’ benefits or change the terms of employment contracts to evade liabilities under the Mandatory Provident Fund Schemes?
- 3. Can employers re-engage their employees under new contracts as self-employed persons in face of the implementation of the Mandatory Provident Fund Schemes to reduce the employees' benefits that are payable under the Employment Ordinance and other labour legislation?
- F. Employment (Amendment) Ordinance 2010
- G. Secondment
- H. Employment of Foreign Domestic Helpers
- I. Right to strike
- J. Other industrial actions
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A. A brief explanation of a contract of employment
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Matters related to the Employees' Compensation Ordinance
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A. Work-related injuries and the relevant compensations
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1. Liabilities on compensations
- 1. What is meant by "an accident arising out of and in the course of employment"?
- 2. Under what circumstances is the employer NOT liable to pay compensation for work injuries?
- 3. Are there any circumstances in which employers are also liable to pay compensation for injuries that are suffered outside of the workplace (or outside of Hong Kong)?
- 4. What is a "compensable occupational disease"?
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2. Compensation Items
- 5. My husband died of an accident that happened during his work. What compensation is payable to me or my family members?
- 6. I was injured and disabled due to an accident that happened during my work. What compensation is payable to me or my family members?
- 7. Besides the above-mentioned compensations, am I entitled to other payments (e.g. medical expenses) for my work injury?
- 3. Report on work injuries or related accidents
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4. Other matters on work injuries
- 10. What are the arrangements for paying compensation?
- 11. If I cannot settle the work injury compensation matters with my employer amicably, then what is the time limit for bringing my case to the Court?
- 12. Are employers obliged to take out compensation insurance policies for all employees?
- 13. If I am not satisfied with the amount of compensation granted according to the ECO, or I think that my employer has wrongfully neglected the safety measures, then can I claim more?
- 14. As an employee, am I entitled to compensation for work-related stress?
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1. Liabilities on compensations
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A. Work-related injuries and the relevant compensations
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Other major employment and labour legislation
- A. Occupational Safety and Health Ordinance
- B. Factories and Industrial Undertakings Ordinance
- C. Statutory Minimum Wage
- D. Other related legislation
- Other matters in relation to a contract of employment
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The Labour Tribunal and the Labour Department
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A. Introduction to the Labour Tribunal
- 1. What work does the Labour Tribunal carry out?
- 2. What types of claim does the Tribunal hear?
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3. Before hearings
- 3. What should I do if I decide to file a claim?
- 4. How much does it cost to file a claim?
- 5. What will happen after I have filed a claim?
- 6. What will happen if the Tribunal cannot serve my claim on the Defendant?
- 7. What will happen if the Defendant agrees to pay the claim in full?
- 8. What will happen if the Defendant admits the claim, but cannot pay immediately?
- 9. What will happen if the Defendant disputes the claim in part or in whole?
- 10. What will happen if the Defendant ignores the claim?
- 4. During hearings
- 5. Preparation for the hearing or trial
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6. After hearings
- 16. Can a judgment (Court/Tribunal's decision) be reviewed?
- 17. Can the Claimant or the Defendant appeal to a higher court?
- 18. Can a decision of the Court of First Instance of High Court be appealed?
- 19. How do I appeal against a decision of the Tribunal or the Court of First Instance?
- 20. How do I get back the money that I am awarded?
- 21. As a judgment creditor (for which I am entitled to compensations according to the Court/Tribunal’s judgment), can I enforce the judgment if the judgment debtor has lodged an application for leave to appeal?
- 22. What will happen to the Defendant who fails to pay the sum payable under the award of the Labour Tribunal?
- B. Introduction to the Labour Department of the HKSAR Government
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A. Introduction to the Labour Tribunal
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