The Employment (Amendment) Bill 2016 (“Bill”) was tabled in LegCo in February this year. Its chief aim appears to be that it will remove the pre-requisite that both employer and employee agree to an order for reinstatement or re-engagement in circumstances of unlawful dismissal (under s.32A(1)(c) of the Employment Ordinance (“EO”)). This is set out at clauses 3B and 3C of the Bill:
(3B) For a dismissal of an employee in any of the circumstances mentioned in section 32A(1)(c), even though only the employee expresses agreement, the court or Labour Tribunal must make an order for reinstatement or re-engagement if it finds that reinstatement or re-engagement of the employee by the employer is reasonably practicable.
(3C) Before making a finding for the purposes of subsection (3B), the court or Labour Tribunal—
(a)must give an opportunity to the employer and the employee to present each of their cases in respect of the making of an order for reinstatement or re-engagement; and
(b)must take into account the circumstances of the claim, including—
1.the circumstances of the employer and of the employee;
2.the circumstances surrounding the dismissal;
3.any difficulty that the employer might face in the reinstatement or re-engagement of the employee; and
4.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.
Current and proposed legislation
For there to be an order for reinstatement or re-engagement under current legislation there has to be mutual consent by both the employer and employee – this remains the position for dismissals that are not unlawful (not under s.32A(1)(c) EO).
In cases where an employee has been unlawfully dismissed and who agrees to being reinstated, the Bill mandates that the employer reinstate or re-engage the employee (provided that such order is appropriate after taking into account the above four considerations).
Penalty for non-compliance
If an employer refuses to re-engage a dismissed employee it will be liable to pay to the employee whatever amount that he would have been awarded if no order for reinstatement or re-engagement had been made (i.e. terminal payments plus compensation up to HK$150,000 under s.32P EO), as well as a maximum sum of three times the employee’s average monthly wages, subject to a cap of HK$50,000.
Commentary
Whilst the deterrent effects of the Bill appear to be minimal, the proposed amendments reinforce current protections of employees in being dismissed only with proper justification. Employers need to continue to be alert to its valid reasons for dismissing an employee – proper internal practices need to be developed or maintained – such that it guards itself from allegations of doing so unlawfully or unreasonably.
Employment Law Update 