In current complex business environment, human resources management often faces a variety of highly controversial and complex operational issues. The statutory law on operational issues is often not clearly explained and analyzed, and it is necessary to refer to different court cases (case law) in Hong Kong in order to be effectively dealing with related operational problems in accordance with the law and to better protect the rights and interests of employers. This legal seminar focuses on reviewing and handling complex and controversial operational issues related to human resources management with reference to different typical court cases in the past.
A total of 27 human resources operation issues will be explained and analyzed in detail.
A. Onboarding Process and Management
1. In the past three years, there was an average of over 200 employers being prosecuted for violating Sections 17I and 17J of the Immigration Ordinance each year. Many of them were prosecuted for mistakes in human resources operations. What are the common operational problems in the cases? Among them, the law allows employers' formulation of appropriate employment policies as a statutory defence. According to the court cases, how should human resources department formulate relevant policies as a defence for negligence?
2. During jobs application process, employers often require applicants to declare whether they have violated any criminal offences. In cases where applicants fail to declare truthfully, it is a criminal offence. What are the areas of immunity in the law, that the applicant can show that he has no criminal record and has not violated the law?
3. In a recent High Court case, the new employer of the new employee was brought to court by the old employer. It involved modestly soliciting the new employee to invite his/ her subordinates to join the new company and returning other restrictions. What are the implications of the court case for the new employer's human resources department? How can they protect their rights and interests as the new employer and formulate clear contract provisions and recruitment practices as a defence? (Note: The speaker will provide the relevant contract clauses for participants' reference)
4. During job interviews, are there any questions that violate the law and should be avoided? How to ask sensitive questions in accordance with the law? (Note: The speaker will provide around 50 related questions for participants' reference, which can be used as a reminder to the department manager about legal matters during the interview process)
5. In the post-epidemic era, what new clauses should be added to the employment contracts to better protect the rights and interests of employers and balance the needs of employees? (Note: The speaker will provide relevant contract clauses for participants' reference)
6. In situation where there is a two-week interval between two fixed contracts, under which legal principles will the court regard it as continuous employment and the employer did not provide statutory rights to the entitled employee? What are the potential risks in dealing with non-renewal of the fixed-term contract after its completion and how should the related risks be eliminated?
B. Compensation Management
7. Employers pay bonuses according to work performance every year. If employers set a relevant clause that the employees who still work in the company or have not submitted a letter of resignation on the day of bonus payment, does this operation method violate the law? How does the case review the relevant disputes? (Note: According to case law, it is illegal to attach relevant conditions to bonuses in contracts, and discretionary bonuses are legal through the appropriate drafting of clauses)
8. Employers of newly recruited employees often provide a series of on-the-job training, which will spend a lot of resources. So, the employers make contract clauses and operating codes that if the employee has not completed a certain period of time in work, such as one or two years, the relevant employee must pay the employer damages when he leaves. How do court cases examine relevant operational disputes, and what common law principles should employers abide by?
9. Under the "7-13" salary calculation, there are different understandings and disputes between the employers and employees. What judgments have been made in court in the past two to three years and does the court ruling have a significant impact on how should the human resources department calculate the "7-13" statutory entitlements?
10. Illegal deduction of wages is the only crime of strict legal liability (that being, absence of criminal motive, unintentional mistakes or lack of knowledge in the law cannot be used as grounds of defence and once the relevant criminal behaviour is determined, the employer can be convicted) in the Employment Ordinance. What are the typical illegal wage deductions that employers should pay attention to and avoid violating the law? What are the important implications of the recent court cases for human resources operations?
11. Employers may give new employees an incentives payment to motivate them, or give current employees an early bonus payment to retain them. Conditional to the payments, the employers require the employees to work for the employer for at least one year, otherwise, the relevant bonus should be refunded (Claw Back). The relevant refund clause in case law is legal. What are the different legal principles for Claw Back and Deduction and how can they be used flexibly by the human resources department in operation?
12. According to relevant cases, unless there is a contrary clause, the monthly remuneration of the employees who are paid by monthly salary covers both working days and non-working days. It means that Saturdays, Sundays (rest days) are paid. Relevant legal principles have important impact on the treatment of sick leave benefits across Saturdays and Sundays, and whether there will be pay during the unpaid sick leave on Saturday and Sunday. How should human resources department formulate relevant policies to protect the rights and interests of employers? How to deal with employees who expect to receive rest day pay on unpaid sick leave?
C. Welfare and Leave Management
13. Failure to grant statutory rest days is a criminal offence for employers. In 2021, the High Court ruled that if a department head asks employees to perform some duties during statutory rest days, such as answering the phone and performing tasks under instructions, it will be regarded as an interruption of continuity of statutory rest days. What important operational implications does this ruling give to the human resources department and department heads?
14. Which sections of the Employment Ordinance regulate employers must give written notice to employees when revising the content of the employee handbook? And in common law cases, what amendments to the employee handbook require the consent of the employees?
15. For any additional benefits by employers outside the Employment Ordinance, if they have been implemented for a certain period of time, they are considered to be customary in common law and they must continue to be implemented. Employers need to obtain the consent of employees when amending or withdrawing the benefits, especially if there are significant changes. The case law allows the employer to reserve the right to unilaterally withdraw and amend the terms of the contract. How should human resources department construct relevant provisions to better protect employers and deal with the relevant welfare policies more flexibly? (Note: The speaker will provide the relevant contract clauses for participants' reference)
16. When an employee is dismissed by the employer on the day he returns to work, effective immediately, then the employee leaves immediately on the grounds of sick leave and submits a sick leave certificate on the same day. How does the case review this situation? (Note: A dismissal on paid sick leave is an unlawful dismissal if the employee is not being summarily dismissed)
17. When an employee with poor performance is about to use up the paid sick leave benefits, and they are afraid of being fired by the employer during unpaid sick leave. They submit a doctor's certificate claiming that the original sickness was actually caused by a work injury, in order to extend the sick leave allowance. Even if the insurance company does not recognize the related injury, under the protection of the work-related injury regulations, it will take one to two years for the court to deal with it. How can the employer eliminate this risk according to the law?
18. In situations where employers dismiss an employee with a notice period according to the employment regulations and the employee suffers a work-related injury or become pregnant during the notice period. What should the employer do in accordance with the law and whether it is necessary to withdraw the notice of resignation? On the contrary, if the employee has submitted a resignation letter but becomes pregnant or suffers from work-related injury or chronic illness within the notice period, and requests to withdraw the resignation application. According to the case law, should the employer accommodate the employee's request to accept the withdrawal of the resignation application?
D. Performance Management Disputes
19. According to Section 32K of the Employment Ordinance, an employer must satisfy the five substantive and valid reasons for dismissing an employee with payment in lieu of notice or a notice period. The fifth being any other substantive reasons recognized by the courts. In recent years, the courts have ruled that employees who lack a basis for cooperation with their employers can be regarded as reasonable and legitimate grounds and will not be ruled as unreasonable dismissal. What are the implications of relevant cases for operational decisions related to human resources processing?
20. What are the advantages and disadvantages of listing the substantive reasons for dismissal and not listing the relevant reasons in the dismissal letter? How does the courts' latest cases in 2021 imply?
21. Under current economic environment, many employees with poor work performance often complain to different law enforcement agencies in the hope that their positions will be protected. For example, complaints made by an employee to labour department will be considered a criminal offence under Employment Ordinance Section 72B if the employee is subject to targeted dismissal during or after the investigation by the labour department. To deal with these relentless employees, what are the implications of the courts' relevant cases on the success of employers?
22. In different cases on dismissal because of poor performance, how does the court examine the importance of whether the human resources department arranged a disciplinary hearing and issued a warning letter when dealing with relevant issues, and what are the principles for arranging a disciplinary hearing and issuing a warning letter? What issues should the human resources department be cautious (such as include relevant wordings) to ensure employers' right are more protected if there is a lawsuit?
23. In the second stage of personal injury claims in work-related injury cases, the employer and the employee are often ruled to be contributorily negligence. After the employee's work-related injury, it is employers' responsibility under common law duty of care to provide appropriate light work arrangements. The failure to arrange such will be regarded as employers' negligence, and it becomes an important legal basis for claims. In different court cases, what light work arrangements guidelines should human resources department provide department heads with?
24. In order to protect business interests, employers will consider whether they can monitor the record of employees' email and browsing history during their employment. Does this operation code violate the Personal Data (Privacy) Ordinance? The Privacy Commissioner for Personal Data Administrative Appeals Board's Decisions revealed that the relevant policies need to comply with several principles. How should human resources department assist employers in formulating relevant policies to comply with the relevant principles to better protect employers' business interests?
E. Employee Departure Management
25. Under the Employment Ordinance and other legal principles, there is no regulation on whether or not employers should give reference letters to employees. However, under common law and in Hong Kong cases, if employees meet three basic principles, employers must give reference letters and the content of reference letters must truly reflects the substantial reasons for resignation. What are the operational guidelines for human resources department to handle the reference letters or employment certificates of resigned employees?
26. Employers have subjective wishes and expectations that employees will not file complaints against the company to law enforcement agencies after leaving the company, regardless of whether the relevant complaints are related to the company or employment. How does the human resources department establish an effective and legally blinded separation agreement to ensure that employees will not issue any lawsuits and complaints after resignation? In 2020, the Court of Final Appeal provided important guidance on the relevant separation agreement (Note: The speaker will provide the relevant detailed terms of the separation agreement for participants' reference)
27. Can the employer reach an agreement with the employee that after leaving the company, the employees shall not make any disparaging remarks about the company management or other company members? The court has ruled that the agreement not to make any disparaging remarks is valid and binding. How should human resources department handle and write relevant provisions effectively? (Note: The speaker will provide relevant provisions for participants' reference)
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.
- All visitors must scan the "LeaveHomeSafe" QR code at the entrance and undergo body temperature checks. |