Hong Kong Amends Employment Ordinance To Empower The Labour Tribunal To Make Compulsory Reinstatement Or Reengagement Orders

Author:Mr Duncan Abate and Hong Tran
Profession:Mayer Brown JSM

The Employment (Amendment) (No.2) Ordinance 2018 (the "Amendment Ordinance") was passed by the Legislative Council on 17 May 2018 and gazetted on 25 May 2018. The Amendment Ordinance provides for the Labour Tribunal to order compulsory reinstatement or reengagement of an employee in the event of unlawful termination and it is reasonably practicable to do so. The Amendment Ordinance will come into effect on a day to be appointed.

Under the Employment Ordinance (the "EO"), unreasonable and unlawful dismissal refers to the situation where an employee is dismissed other than for a valid reason and is in contravention of the EO. Valid reasons for dismissal include the conduct of the employee, the capability or qualifications of the employee for performing his or her work, redundancy or other genuine operational requirements of the business, compliance with statutory requirements, or other substantial reasons. On the other hand, dismissals in the following circumstances contravenes the law:

dismissal of a female employee who has been confirmed pregnant and has served a notice of pregnancy to her employer; dismissal whilst the employee is on paid sick leave; dismissal by reason of an employee giving evidence or information in any proceedings or inquiry in connection with the enforcement of the Employment Ordinance, work accidents or breach of work safety legislation; dismissal of an employee for trade union membership and activities; or dismissal of an employee entitled to compensation under the Employees' Compensation Ordinance (Cap. 282) before having entered into an agreement with the employee for employee's compensation or before the issue of a certificate of assessment. Before making such an order, both the employer and the employee must be given an opportunity to present each of their cases in respect of the making of an order for reinstatement or reengagement. The court or the Labour Tribunal must take into account the circumstances of the claim before making such order, including:-

the circumstances of the employer and the employee; the circumstances surrounding the dismissal; any difficulty that the employer might face in the reinstatement or reengagement of the employee; and the relationship between the employer and the employee, and between the employee and other persons with whom the employee has connection in relation to the employment. The court or Labour Tribunal may also, upon the agreement of both the employer and the...

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