to formulate and implement human resources policies, measures and contract terms to effectively deal with tricky and controversial human resources issues. With a lack of related legislation around these controversies, we have to resort to case law in our common law system as our only legal guidance. This online course draws on landmark court cases to examine and provide guidance on how to devise effective policies and measures in tackling sensitive and contentious human resources issues. To aid the implementation of legal and enforceable human resources policies, the speaker will also provide examples of relevant policies, clauses and contract terms for reference.
1. Contentious policy 1: Formulating sick leave policy to prevent sick leave abuse, and dealing with employees with chronic physical and mental illness
• Under current sick leave policies, an employee is entitled to the full average daily wage without any cap even if such employee took out a sick leave for 1 day. Is it possible for employers to legally tighten such entitlement by limiting the maximum number of paid sickness days or by restricting paid sickness days to no more than 4 consecutive days and daily rate of sickness allowance to 4/5 of the average daily wage?
• Is it possible to arrange for designated doctors to obtain more specific information about the health conditions of employees who are continually calling in sick?
• Is it possible to request for detailed medical history and record from employees?
• How to devise policies dealing with employees who claim that they have chronic physical and mental health conditions?
• Landmark cases on how to formulate relevant human resources policies without contravening the law, including the anti-discrimination ordinances.
• Sample policies included for reference.
2. Contentious policy 2: Human resources policies to effectively handle suspicious work-related injuries cases, and habits of doctor-shopping to continuously take out sick leave for work-related injuries
• When faced with suspicious work-related injuries cases, and habits of doctor-shopping to continuously take out sick leave for work-related injuries, how should human resources managers formulate policy to address the relevant risks?
• Recent cases held that employers are entitled to request allegedly injured employees to attend medical consultations of designated medical practitioners under section 16 of the Employees' Compensation Ordinance (Cap. 282). How should human resources managers formulate relevant measures to strike out employees' compensation claim when such employees fail to attend arranged medical consultations without reasonable excuse?
• Sample employees' handbook clauses and relevant measures included for reference.
3. Contentious policy 3: Reasonable grounds for employers to refuse employees who suffered from work-related injuries to return to work, and the controversies surrounding the implementation of relevant policies
• Case law held that once an employee is ruled to have suffered from work-related injuries, it is illegal for the employer to request a return to work certificate from the employee, and the employee may claim for termination compensation on the ground of constructive dismissal.
• Case law also held that in the event of an employee having lost work capacity, the employer is legally entitled to terminate such employee's employment on the ground of frustration of contract. The burden of proof is on the employer. Relevant policies and guidance on how to handle included for reference.
4. Contentious policy 4: Grounds and practice on discretionary monthly/annual bonus/commission not to become contractual/guaranteed bonus/commission
• Case law shows how human resources managers may devise genuine "discretionary" bonuses/commissions within the legal definition.
• Case law also shows the legal risks caused by improper handling of relevant policies.
• Relevant policy terms included for reference.
5. Contentious policy 5: Human resources policies on compensation for employees working overtime/off days/make-up leave or no make-up leave
• Legislation allows employers to require employees to work on off days in business emergencies. Case law provides guidance on the arrangements for make-up leave on Saturdays and Sundays, alternative arrangements, and how to formulate relevant policies.
• The Court of Appeal ruled in one case that for employment contracts stipulating for 2 rest days, Saturdays or one of the weekdays can be set as "regular holiday". After working on a "regular holiday", the employer may choose not to make up for leave.
• Employees may "voluntarily" agree to work on rest days, and employers are not required to make up for leave. Will advise on how to formulate policies to avoid legal proceedings.
• Contract terms and policy rulebooks included for reference.
6. Contentious policy 6: Disputes over whether employers can refuse to make up for leave after senior employees went on business trips or worked overtime on weekdays (Court of Final Appeal decision)
• How case law examines the relevant dispute.
• The Court of Final Appeal allows insertion of contract terms stipulating that senior/professional employees are not to be paid/made up for leave for overtime work.
• Contract terms included for reference.
7. Contentious policy 7: Disputes over employees' transfer arrangements/change of workplace arrangements
• Is an employee entitled to refuse any transfer arrangement relating to job position, work/branch location, despite the fact that the employment contract has clauses providing for flexible transfer arrangements?
• Is an employee entitled to refuse a transfer arrangement or sue for breach of employment contract, when the commission income is reduced after transfer?
• Case law held that the legal grounds for an employer to carry out transfer arrangements include the fact that the nature of the contract has not changed, the employer has acted reasonably and has not violated the mutual trust under the employment contract. Guidance on how to formulate relevant transfer policies in compliance with the law.
• Rules and sample contracts included for reference.
8. Contentious policy 8: Disputes over whether employers may deduct employees' salary on the basis of lateness, and formulation of different regulations for monthly salary/workpiece/hourly salary employees to be clear of criminal liability
• Deduction of salary is a strict liability offence (personal negligence, lack of legal common sense, and lack of criminal intent are not valid defenses) and attracts criminal liability.
• Can being late be considered as absence from work? What is the general definition of absence from work according to case law?
• Case law have different guidelines on salary deductions for employees who are late depending on whether they are on monthly pay or piece work pay or hourly pay. How should human resources managers formulate contract policies that comply with the laws and regulations?
• How should human resources managers formulate relevant measures to avoid criminal liability?
9. Contentious policy 9: Clause on cancellation of contractual annual leave to avoid violation of the law and to better protect the rights and interests of employers (Court of Final Appeal decision)
• The Court of Final Appeal has reached a decision on the cancellation of "contractual annual leave", ruling that employers can legally cancel it. But what about the disputes over the remaining grey areas, including whether annual leave taken by an employee constitutes statutory holiday or contractual annual leave?
• According to the case law, what are the common illegal cancellation clauses?
• Case law states that employers should clearly state the arrangements for cancellation of contractual annual leave in employment contracts.
• How should the human resources department write relevant provisions to cancel contractual annual leave without violating the law?
• Employees' handbook clauses and contract terms included for reference.
10. Contentious policy 10: Formulation of an equal employment policy that can be used for discrimination complaints and court litigation to protect employers from legal liabilities
• According to section 46 of the Discrimination Ordinance, "employers shall be liable for the illegal acts committed by employees during their employment, unless the employer can prove that the employer has taken reasonable and feasible measures to prevent its employees from doing the relevant things".
• Guidance on how to formulate an equal employment policy that can be used for complaints or court litigation to avoid transfer of liability.
• Important sample policy provisions included for reference.
11. Contentious Policy 11: Disputes over whether the employee can withdraw his/her resignation after he/she submits the resignation notice, and within the notice period
• According to case law, if the employer has confirmed the employee's resignation, the employer has the statutory right to decide whether to accept withdrawal of the resignation. How should relevant policies be formulated?
• Sample clauses included for reference.
12. Contentious policy 12: Disputes over overlapping holidays for lack of statutory provisions resulting in grey areas
• Although there are statutory provisions for most overlapping holiday arrangements, grey areas still exist: Saturdays and Sundays are paid to employees on monthly remuneration, while company sick leave allowance is for 4 consecutive sickness days and at a daily rate of 4/5 of the average daily wage, pursuant to the Employment Ordinance. If an employee takes paid sick leave for 4 consecutive days from Friday to Monday, should the allowance be 4/5 or full salary on the related Saturday and Sunday?
• Case law and guidance on how to formulate relevant measures included for reference.
13. Contentious policy 13: Disputes over unpaid leave policy
• Disputes over unpaid leave include: how to ensure "voluntary" taking of leave, whether unpaid leave is counted as an employee's seniority; for several days of unpaid leave such as Monday to Wednesday, whether Saturday and Sunday rest days should be paid; for long period of unpaid leave such as 3 months, what should be the arrangement for relevant annual leave and contractual bonus?
• Guidance on how to formulate relevant policies.
• Sample policies attached for reference.
14. Contentious policy 14: Effective social media policy to protect the rights of employers
• How has the court examined disputes over employees giving personal remarks on personal social media accounts/occasions?
• Guidance on how to formulate social media policies that effectively protect the rights and interests of employers.
• Sample policies included for reference.
15. Contentious policy 15: Guidelines for employees working from home
• Guidance on the legal precautions for formulating work-from-home guidelines.
• Terms of policy included for reference.
16. Contentious Policy 16: Reminder of legal liability to resigned/terminated employees
• For companies with/without non-disclosure agreement and restriction clauses, how should the human resources department issue legally binding reminder letter to the employee who resigned, including such employee's duty of confidentiality regarding the company's business secrets, the prohibition of storing (including mobile phones) the company's confidential information, and the legal duty to not delete any information stored in the company's computer.
• Sample reminder letters included for demonstration.
(Note: References to sample policies, clauses, and contract terms provided by the speaker will be in English)