In the current complex business environment, human resource management frequently confronts a variety of highly controversial issues that can lead to legal complications. To effectively address these operational and remuneration management problems while safeguarding the interests of employers, human resource managers must handle these issues both effectively and legally. This legal seminar will focus on examining corresponding human resource strategies by referencing various typical court cases from the past.
A total of 16 human resource remuneration management and operational issues prone to legal entanglements will be explained and analyzed in detail.
A. Onboarding Process and Management
1. During the interview process, what are the legally prohibited questions that should be avoided as Personal Data Privacy Ordinance and Discrimination Ordinance? How can one legally ask sensitive questions?
2. What are the typical clauses violated legislations in employment contracts, and how should they be effectively drafted?
3. When there is a two-week gap between two contract periods, under what legal principles does the court consider this as continuous employment, resulting in the employer facing prosecution for not providing statutory rights to the relevant employees?
B. Compensation Management
4. The Employment Ordinance / case laws allows employers to unilaterally revise an employee's salary items based on five valid and statutory reasons, and such revisions can be made legally and unilaterally without the employee's consent.
5. Employers annually provide discretionary bonuses based on work performance, often including a clause requiring that employees must still be working at the company or have not submitted a resignation letter by the bonus payment date. Why is such a clause considered illegal in this case?
6. Discretionary bonuses / Commission held to be contractual bonuses / Commission by the court, employers therefore face claims from the employees: In recent landmark cases, simple discretionary bonuses / Commission could not exclude employers’ legal liability in terms of contractual bonuses / Commission.
7. In 2019, the court ruled that the guaranteed monthly commission and guaranteed bonuses of employees should not be included in the calculation of the total salary, which is based on the average monthly salary over 12 months. Otherwise, it would constitute "double benefits". The ruling clarified the calculation of employee under “7-13” benefits for many employers and could help avoid unnecessary cost expenditures.
8. Illegal deduction of wages is the only crime of strict legal liability in the Employment Ordinance. What are the typical illegal wage deductions that employers should pay attention to and avoid violating the law?
9. Employers may give new employees an incentives payment to motivate them to join the company, the employers require the employees to work for the employer for at least one year, otherwise, the relevant bonus should be refunded (Claw Back). How should the claw-back clause be handled in legal terms to ensure it is lawful?
10. Many employers often expect their sales team to actively follow up on customer loan accounts after achieving sales target. If they fail to recover the loan on time, the commission will be deducted. How do the courts review related disputes? How can human resources legally draft commission policies that include other business conditions?
C. Welfare and Leave Management
11. According to relevant cases, the monthly remuneration of the employees who whose Saturdays, Sundays (rest days) are paid. Relevant legal principles have important impact on the treatment of sick leave allowances benefits across Saturdays and Sundays, and whether there will be full pay?
12. Employers who fail to provide statutory rest days and "force" employees to work overtime involuntarily are at legal risk. How can employers ensure that overtime work is truly voluntary and avoid legal repercussions?
13. 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. The case law allows the employer to reserve the right to unilaterally withdraw and amend the terms of the contract. How should the contract be drafted to include a clause that allows the employer to unilaterally withdraw or amend these benefits, to minimize related risks?
14. An employee was dismissed by the employer with immediate effect on the day. The employee left immediately citing sickness and submitted a medical certificate on the same day, demanding that the employer retract the dismissal notice, otherwise, it would be considered an unlawful dismissal. How can the employer legally address this situation?
D. Employee Performance Management Disputes
15. How should employers and human resources professionals effectively and legally deal with employees’ violations, dishonesty and inappropriate behaviours, and reasonably dismiss employees who violated the regulations:
a. Relevant laws and regulations on the dealing with employees being late, leaving early, absenteeism, and disobedience to reasonable work instructions from their superiors. What lessons has been given to employers and human resources in court cases?
b. How to legally deal with employees who take habitual sick leave with ill-intentions? What are the legal risks of dismissing employees who take habitual sick leave?
c. How to remind employees of the criminal responsibilities for inappropriate and tortious behaviours during their employment (such as: extracting and disclosing customer information, using illegal software, improperly handling customer personal information, and disclosing company business secrets, etc.)? From various court cases, what legal responsibilities and vicarious liabilities shall be borne by company directors and senior management?
d. In the case of reasonable dismissal of employees, who have violated legal or company regulations, in breach of contract, and committed serious misconduct, how should human resources department deploy based on the legal perspectives of case law?
e. Unlawful dismissal: how human resources professionals should avoid illegal dismissal in daily management, so as to reduce the risk of employers and executive directors being subject to wrongful dismissal prosecution as per case law?
E. Employee Departure Management
16. How can employers ensure that problematic employees do not initiate unnecessary legal actions against them through effective and legally binding separation agreements? The Final Appeal Court provides clear guidance on this matter.
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