Termination of employment contract
Either the employer or the helper may terminate the employment contract before it expires by giving at least one month’s notice in writing or by paying one month’s wages in lieu of notice (WILON) to the other party (see clause 10 of your employment contract). There are also circumstances when a contract may be terminated without the need to give either notice or WILON. Such circumstances are discussed in this section.
Termination with one month’s notice by the EMPLOYER
A notice of termination must be written and must be correctly dated. It should also state the date of your last working day and you must be given a copy of this letter. If you do not obtain a copy, there is a risk that the letter might be altered to your disadvantage. HDH has encountered such cases where dates or amounts written on the letter have been changed so that the domestic helper could be denied of her entitlements.
Dos and Don’ts
Read the termination letter carefully before you sign. Do not acknowledge the letter if it contains false information or any information that you do not agree with.
Make sure that the letter is correctly dated (i.e. the actual date when you received the notice) and/or write the correct date yourself next to your signature.
Ask for a copy of the termination letter before you sign it. There have been cases where the helper was refused a copy after she signed the letter which was then altered to the detriment of the helper.
A notice of termination should be distinguished from a warning letter. A notice of termination should indicate the last working day while a warning letter will normally state that the helper’s contract would be terminated if certain reasonable expectations are not met. Warning letters should not be acknowledged if they are ante-dated or given on the same day of the termination or if they contain false allegations. Warning letters are often used to justify summary dismissal.
Termination by payment of wages in lieu of notice by the EMPLOYER
The employer may terminate your employment without giving you prior notice by paying you wages in lieu of notice.
If the employer has given you one month’s notice but asks you to leave before the end of the notice period, the employer must pay you wages for the remaining notice period. For example, if the employer gives you one month’s notice on June 25 but then tells you to leave on July 10, you will be entitled to receive 14 days wages in lieu of notice for the period July 11 to July 24 in addition to your earned wages up to July 10.
Termination with one month’s notice by the HELPER
According to clause 10 of the standard Employment Contract, notice of termination must be in writing. A verbal notice is not sufficient and without documentation, it is easy for the other party to deny that a notice has been served. In fact even if you served a written notice on the employer, unless you have a copy of this letter signed by the employer, the employer may still deny having received the notice. The employer may then try to demand that you pay wages in lieu of notice when you leave at the end of the notice period.
The employer cannot reject your notice of resignation and demand that you wait for a next helper hired to replace you to arrive, unless you are willing to accept such an arrangement to do so. Otherwise the employer cannot force you to continue working.
When serving a written notice to the employer, remember to:
§ Write the date of when you are actually serving it to the employer and state the date when the notice takes effect.
§ State your last working day.
§ Make two copies of the letter, one for the employer and one for you to keep.
§ Ask the employer to acknowledge receipt of the notice by signing your copy of the letter.
§ If the employer refuses to sign your copy or to accept the notice, photocopy the letter and send this to the Immigration Department accompanied by a cover letter explaining that you have served it on the employer but that the employer refused to sign it. Include the date when you served the notice to the employer in your letter to the Immigration Department.
§ (See Annex 1 on page XX for a sample of a notice of termination by the domestic helper)
Termination by PAYING WAGES IN LIEU OF NOTICE BY THE HELPER
If you want to leave your employment immediately and you have not given any prior notice, discuss with your employer if according to your experience your employer is a reasonable person and may be willing to listen to you and accede to your request. Tell him the situation you are in and see if he is willing to let you go. However, if that discussion is not fruitful or if you think such a discussion is not appropriate in your circumstances, you may leave by paying the employer an amount equivalent to one month’s wages. You may also leave during the notice period, i.e. after giving prior written notice but before the end of the one month’s notice period, but you will have to pay the employer an amount equivalent to wages for the remaining days of the notice.
For example if you have served a notice to resign on 1st January, your last working day is supposed to be 31st January. If you then decide to leave on 20th January your employer should pay your wages up to 20th January and you then have to pay your employer an amount equivalent to the wages from 21st January to 31st January.
The issue of which party terminated the contract is often a source of dispute between employers and helpers. When an employment relationship breaks down and tensions run high either or both parties may suddenly decide to terminate the contract. Both parties may then demand wages in lieu of notice from the other.
Common scenarios and tricks by employers/ agencies:
- The worker maybe tricked or coerced into signing a resignation letter or a so called “mutual agreement” to terminate the employment contract even though it was the employer who initiated the termination. In tense situations some helpers may be too distraught to think clearly or are unable to resist pressure to sign a false letter.
- The worker may be told to pack up and leave but is then accused of running away or resigning without notice.
- The worker may be falsely accused of some kind of misconduct (for example, and quite commonly, stealing the employer’s property) to justify denying her termination entitlements.
Ø Dos and Don’ts
- if the employer asks you to leave, ask for a termination letter.
- If the employer refuses to give a termination letter, call a witness.
- If the employer asks you to sign a letter, read it carefully. It may be a resignation letter and if so, do not sign it unless you are leaving on your own accord.
- Do not rely on the employment agent’s words that your employer has terminated your contract. The employer may later deny that she initiated this and demand wages in lieu of notice from you. Ask the employer directly if you have been dismissed and ask for a termination letter.
§ Termination without notice by the Employer (Summary Dismissal)
- An employer may terminate the contract without notice and without payment in lieu of notice if the helper has done any of the following:
1. Wilfully disobeyed a lawful and reasonable order
Refusing to obey an unlawful order such as working outside the contract address or performing non-domestic duties is not a valid reason for summary termination.
2. Misconducts herself
Misconduct has to be serious enough, for example, the offence of theft or child abuse, to warrant a summary dismissal.
3. Is guilty of fraud or dishonesty
4. Is habitually neglectful of duties
It is not enough for the employer to say that your performance does not meet the employer’s requirement. There has to be a repeated failure on your part to perform your duties to a reasonable standard.
§ Termination without notice by the Helper
A helper may terminate the employment contract without notice or payment in lieu of notice if:
- You have been physically or sexually assaulted or threatened with violence.
- Your employer subjects you to ill-treatment or abuse.
- Your employer has failed to pay your wages within one month after they became due.
- There has been a serious breach of contract by your employer (For example underpayment of wages, illegal deployment, physical abuse)
- You have been employed for not less than five years and you are medically certified as being permanently unfit to perform the duties of a domestic helper.
If the employment contract is terminated, the employer must pay all outstanding wages and other sums due to the helper within 7 days after the date of termination.
If the helper or the employer terminates the contract without notice or payment in lieu of notice, they must make sure that they have sufficient evidence to justify this. If there is no justifiable reason for the termination, the aggrieved party may file a claim for wages in lieu of notice with the Labour Department.