Termination of Employment Contract

Please note that the information below is provided by the Hong Kong Labour Department.

As both Employer and Helper
1.  Can an employer or a helper terminate the employment contract before it expires?
2.  Can an employer or a helper terminate the contract without notice or payment in lieu?
3.  What should I bear in mind when considering termination of the contract without notice?
4.  What should I do if my helper leaves without giving me notice or paymentn lieu ? OR What should I do if my employer dismisses me without giving me notice or payment in lieu?
As Employer
5.  Upon termination or expiry of the contract, what items of payment should I pay to my helper?

1.Can an employer or a helper terminate the employment contract before it expires?

Yes, either party may terminate the contract by giving not less than one months notice in writing or by paying one months wages to the other party. A sample of the letter of termination is at Appendix III.

For Employer

1. You should clear all outstanding wages and other sums due to your helper, preferabley by payment through the bank, and obtain a receipt for all payments.
2. You are required to notify the Extension Section of the Immigration Department in writing of the termination within seven days of he date of termination. It is not necessary to inform the Labour Department.

For Helper

1. You should clear all outstanding wages and other sums due to your employer, preferably by payment through the bank, and obtain a receipt for all payments.
2. You are required to notify the Extension Section of the Immigration Department in writing of the termination within seven days of he date of termination. It is not necessary to inform the Labour Department.

2.Can an employer or a helper terminate the contract without notice or payment in lieu?

Termination without notice or payment in lieu is allowed only under special circumstances.

For Employer – You may summarily dismiss your helper without notice or payment in lieu of notice if your helper, in relation to the employment:

1. wilfully disobeys a lawful and reasonable order;
2. misconducts himself/herself;
3. is guilty of fraud or dishonesty; or
4. is habitually neglectful of his/her duties.

For Helper – You may terminate your employment contract without notice or payment in lieu of notice if:

1. you reasonably fear physical danger by violence or disease;
2. you are subjected to ill-treatment by your employer; or
3. you have been employed for not less than five years and you are medically certified as being permanently unfit for the type of work you are engaged.

3.What should I bear in mind when considering termination of the contract without notice?

1. Termination of employment without notice is usually preceded by disagreement between the employer and the helper. In the midst of heated arguments, things may be blown out of proportions and either party may there and then believe that it is justified for him/her to terminate the contract or to consider that it has been terminated. This often turns out to be ill-conceived. As independent witnesses are not usually available in a domestic environment, it will be difficult to re-construst the circumstances leading to the dispute and decide whether the action taken is justified.
2. The best way to solve problems arising from employment is for the parties to talk things out. Try to be considerate and tolerant with each other in sorting out your differences. Most problems can be resolved without resorting to drastic actions.
3. Termination of employment without notice should be considered only under very special circumstances. If you really have to do so, you should make sure that you have sufficient evidence to back up your case. Otherwise, you will likely face a claim from the other party.

4.What should I do if my helper leaves without giving me notice or paymentn lieu? OR
What should I do if my employer dismisses me without giving me notice or payment in lieu?

1. You should notify the Extension Section of the Immigration Department if you consider that the contract has been unilaterally terminated by the other party. For the employer, if you are unable to locate the whereabouts of the helper, you may also wish to report the case of missing helper to the Police.
2. If you consider that the other party is not entitled to terminate the contract without notice and you wish to claim wages in lieu of notice, you should approach the appropriate branch office of the Labour Relations Division of the Labour Department without delay. This Division will help you settle your claim by conciliation (see Quesion 11).
3. You may of course waive the requirement of proper notice from the other party.

5.Upon termination or expiry of the contract, what items of payment should I pay to my helper?

1. The items and amount payable to your helper on termination or expiry of the contract depend on a number of factors such as the length of service and the reason for termination of contract. However, termination payments usually include:
   – outstanding wages;
   – wages in lieu of notice, if any;
   – payment in lieu of any untaken annual leave, and any pro rata annual leave pay for the current leave year;
   – where appropriate, long service payment or severance payment;
   – any other sum due to the helper in respect of the employment contract.
   e.g. free return passage and food and travelling allowance.
2. It is advisable to keep the receipts for such payments. (look at a sample of the receipt for payments)