Termination Entitlements

You must consider a number of factors in order to calculate your entitlements upon termination or expiry of your contract.  Such factors include the amount of time you worked for the employer and the reason why the employment contract was terminated.

 

Termination payments usually include:

§       Outstanding wages

§       Wages in lieu of notice, in case of premature termination without prior notice

§       Compensation for statutory holiday(s) or rest day(s), if not taken

§       Payment in lieu of any untaken annual leave and any pro rata annual leave pay for the current leave year

§       Long service payment or severance payment, if appropriate

§       Free return passage,

§   Food and travelling allowance of $100 per day

 

Long service payment

 

Your employer must pay long service payment to you if you have worked continuously for that employer for at least 5 years, and:

 

§    Your contract is terminated because by reason other than serious misconduct or the employer no longer requires the services of a domestic helper

§    You are certified by a registered medical practitioner or registered Chinese medicine practitioner as permanently unfit for the present job and you resign

§    You are aged 65 or above

 

You are not entitled to Long Service Pay under the following circumstances:

 

  • If you were dismissed without notice due to serious misconduct

 

  • If you terminated your employment  except if you were subjected to ill treatment, are permanently unfit to work as a domestic helper or are 65 years old.

 

 

  • If not less than 7 days before the expiry of the contract, your employer offered to renew the contract and you unreasonably refused the offer.

 

You cannot claim Long Service Payment and Severance Payment at the same time.  If your contract is terminated because your employer no longer requires the services of a domestic helper, you are entitled to Severance Payment but not Long Service Payment.

 

Calculation of Long Service Payment:

 

Last month’s wages x  2/3 x years of service.

 

An incomplete year of service is to be calculated on a pro rata basis.

 

Severance payment

 

If you have worked for the same employer continuously for not less than two years and you are dismissed or your contract is not renewed because your employer no longer requires the services of a domestic helper, this means that you have been made redundant and the employer must pay you severance payment.

 

 

Calculation of Severance Payment:

 

Last month’s wages x  2/3 x years of service.

 

An incomplete year of service is to be calculated on a pro rata basis.

 

 

Return passage and travelling allowance to your place of origin

 

When your contract is terminated or expires, your employer is responsible for paying for your airfare back to your place of origin. You and your employer should decide whether you would be provided with an air ticket or cash instead of an air ticket.

 

If your contract is terminated prematurely, you are normally permitted to stay in Hong Kong for 14 days after the termination. There have been many instances where FDHs are taken to the airport by the employer on the day they were dismissed or were given air tickets booked soon after they were dismissed. An employer may do this in order to pre-empt you from pursuing your lawful entitlements. If you want to stay in Hong Kong during the 14 day period for whatever reason, the employer or agency has no right to force you to fly back to your home country immediately. Only the Immigration Department has the right to decide when you must leave Hong Kong. Therefore talk to your employer when you want your flight to be booked if the employer is providing you with an air ticket, and do not accept the ticket if your flight has been booked soon after your termination. Otherwise you may have to bear the cost, if any, of rebooking the ticket or the ticket might no longer be valid if you do not take the flight. It will not be cost effective to lodge a claim with the Labour Department just for your airfare.

 

If the employer attempts to get you onto a flight out of Hong Kong against your will, call the police or inform an Immigration Officer at the airport if you have already been checked in for the flight.

 

Your employer is also responsible for providing you with travel allowance for your trip home. This allowance will be calculated depending on your journey time from Hong Kong to your place of origin. You should travel by the most direct route back to your place of origin.

 

 

 

Appendix 1

Sample

Termination letter by domestic helper with one month’s notice

_______________________________________

 

28 September 2011

 

Dear Ms. Chan,

 

Termination of DH Contract No. XXXX

 

I, Maria De Jesus, hereby resign from the post of domestic helper, under DH Contract No. XXXX by giving you one month’s notice effective 28 September 2011. My last working day will be on 27 October 2011.

 

The reason for my resignation is because my health has been deteriorating from lack of adequate rest.

 

Yours sincerely

 

 

 

Maria De Jesus

 

 

Acknowledged by:__________________

Chan, Wendy

(Employer)

 

PROCEDURES FOR FILING A LABOUR CLAIM

 

 

Under the Employment Ordinance chapter 57, wages must be paid to the employee  within 7 days after they became due. The employer also has 7 days to settle entitlements owed to the employee following the termination of an employment contract. If your employment was terminated and you do not receive the payment at the end of the 7 day period, you may file a claim with the Labour Relations Division of the Labour Department nearest the employment address.

1.      Bring your Hong Kong ID card, passport, employment contract, termination letter if you were given one, wage records and any other documents relevant to your claims.

 

2.      You will be asked to fill in a claim form with the details of your claim.

 

3.      You will then be given a written appointment for a conciliation meeting with the employer at a later date.

 

4.      You will also be given a letter addressed to the Immigration Department to help with your application for extension of stay. You must present this letter to the Immigration Department if the conciliation meeting has been scheduled later than the date of expiry of your visa.

 

5.      Remember that if your employment contract was prematurely terminated i.e. before the end of the two year term as stated in your passport, your permission to stay in Hong Kong will expire 14 days  after the effective date of termination.

 

6.      A conciliation meeting will be held at a Labour Relations Division office mediated by a labour officer. During the meeting, you and your employer will be given an opportunity to discuss the issues and negotiate a settlement. You must be prepared before you attend the conciliation meeting. Know what you are entitled to and why you are entitled to them. (HDH can help with preparing domestic helpers for conciliation meetings).

 

7.      Negotiate calmly and confidently. Do not let yourself be intimidated by the employer. Do not be rattled if the employer make false allegations. Calmly and firmly deny the allegations and state your case.

 

8.      If the matter is not settled during the conciliation meeting you may pursue your claim in the Minor Claims Adjudication Board (for claims below HK$8,000) or the Labour Tribunal (for claims amounting to HK$8000 or above).

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