The number of legal actions brought against employers and Human Resources Departments for breach of provisions safeguarding employees' leave entitlements under the Employment Ordinance (Cap. 57) ("the Ordinance") has been increasing in recent years. More importantly, improper calculation of payments for leave and holidays may constitute illegal deduction of salary, which is a strict liability offence (i.e. prohibited state of mind not required, oversight or omission not valid defence). Meanwhile, affected by the current economic environment, some employees may make use of legal loopholes to abuse leave benefits, troubling employers and undermining companies' positive team culture of active work.
In this workshop, case law will be used to explain the loosely defined areas in the Ordinance and to support various practical suggestions of lawful and effective solutions to the following complicated and controversial issues about employees' leave entitlements. Details of the 30 legal controversies concerning employees' leave are as follows:
1. In compliance with the Ordinance, companies offer sickness allowance. If an employee takes sick leave for 4 days, some of which fall on Saturday and Sunday, should the employee be paid 5/5 or 4/5 for the rest days? (NB: Practice regarding "overlapping leave" in this area is not regulated by any legislation. What does case law suggest?)
2. If an employee who receives monthly salary takes no-pay sick leave, is he/she entitled to paid rest days and statutory holidays? How can we safeguard employers' interests?
3. If an employer has provided contractual sickness allowance (i.e. 5/5 salary), is he/she still obliged to pay the statutory sickness allowance? (Answer: Yes. The key is how to draft an employment contract which eliminates provision of double benefits.)
4. If an employee takes no-pay leave for 1 month or more, is he/she entitled to the statutory sickness allowance and accumulated sickness benefits?
5. Upon resumption of work, an employee is dismissed with immediate effect. He / she then takes sick leave as an excuse to stay. What does case law suggest?
6. With a view to avoiding employees being demoralised, how should employers deal with employees who take sick leave frequently? What are the takeaway points from case law?
7. As per case law, how can employers lawfully dismiss employees who take sick leave frequently or take prolonged sick leave (such as mental health sickness) while strictly observing the Ordinance and the Disability Discrimination Ordinance (Cap. 487)? What are the prudent steps that employers can take? How can the employer pass the legal tests under the Disability Discrimination Ordinance?
8. During the notice period, an employee takes sick leave frequently, affecting the handover of work. What can the employer do?
9. A resigned employee who learns of his/her chronic illness during the notice period strongly requests for withdrawal of resignation. As per case law, can the employer reject such withdrawal request? If case law allows such rejection, does it violate the Disability Discrimination Ordinance?
10. How should employers formulate a comprehensive sick leave policy which properly protects employers' interests and benefits?
Work Injury Sick Leave
11. What if an employee's work injury sick leave overlaps with other leave entitlements? How can HR handle as per the Ordinance?
12. For companies who have not adopted 7-13 (calculation of relevant statutory entitlements on the basis of the 12-moth average wages), how should they calculate the relevant statutory entitlements?
13. As per case law, how can employers lawfully deal with employees who seek medical treatment from many different doctors in an attempt to prolong the period of work injury sick leave?
14. After 1 year of work injury sick leave, an employee resumes working. What should the employer do in order to exercise the duty of care owed (e.g. by assigning lighter duty to the employee concerned)? If the employee is unable to perform his/her original duties, the employer can lawfully deduct his/her salary. What are the relevant legal authorities?
15. After an employee taking 2 years of work injury sick leave, can his/her employer lawfully refuse to employ him/her? What does case law suggest in relation to lawful and effective steps that could be taken by the employer?
16. After being dismissed, an employee claims that he/she has suffered from work injury the week before and requests for withdrawal of termination. Otherwise, as the employee claims, the employer may be subject to criminal liability. What are court decisions on the relevant controversies?
17. How can employers forfeit unused annual leave without breaching the law?
18. As per a decision of the Court of Final Appeal, outstanding annual leave can be used as a part of notice period by employees. However, according to Section 6 of the Employment Ordinance, an employer is not permitted to do so without employee's consent. What are the relevant legal authorities?
19. Does a variation of contractual annual leave need an employee's consent? How can employers be better protected?
20. An employee without any unused annual leave takes annual leave for 15 days. If his/her employer deducts the extra salary paid for the 15-day paid annual leave from his/her final payment when he/she resigns, the employer breaches the law. What should employers do?
Statutory Holidays / Statutory Annual Leave / Overtime Work / Substitution of Holidays
21. In terms of employer protection, what are the merits of clearly distinguishing statutory rest days from contractual rest days in contracts of employment?
22. From case law, what are the common mistakes in respect of handling holidays-related issues made by employers? What can employers do to avoid risk?
23. What are the differences between substitution of holidays for statutory rest days and overtime work on other days? What are the relevant lawful practice?
24. Is it lawful to expressly state that employees are expected to work overtime and will not be granted any substituted holidays or hours (except statutory holidays) in contracts of employment? How should employers draft the relevant contractual provisions? To what level of employees are the provisions enforceable?
25. Is a resigned employee who learns of her pregnancy during the notice period entitled to withdraw the resignation? Can her employer reject her request? What does case law suggest?
26. What are the common questions and controversies about maternity leave entitlements?
27. What are the legal requirements for dismissing a pregnant employee with poor performance? What does case law suggest?
28. As per case law, how should employers arrange and handle applications for no-pay leave?
29. If an employee takes no-pay leave for 4 days in a week, is he/she entitled to paid rest day(s)?
30. How can HR handle entitlements in relation to relatively long no-pay leave (e.g. 2 months)? Is not paying for rest days lawful? What about statutory holidays, annual leave, contractual bonus and year-end bonus?
Coronavirus Containment Measure:
- To prevent the spread of Covid-19, we kindly ask that all event participants wear a mask when attending the event
- To minimise the risk of spreading the coronavirus, if you or a family member has been overseas within 14 days of this event, then we kindly request that you do not attend.
- To prevent the spread of Covid-19, food and beverages will not be provided during the event
- Chamber staff will be conducting temperature checks at the premises.