Christmas, Lunar New Year and other long public holidays (Public Holidays) are peak seasons for a lot of businesses. It appears from a recent news report that some employers set internal rules restricting their employees from taking leave during the Public Holidays. One logistics company even went further to require that except in the case of sickness or emergency, any employee who takes leave during the Public Holidays shall be deemed to have voluntarily resigned from the company. The following legal issues arise from the above scenario.
Can an employer require employees to work on a statutory holiday?
Under the Employment Ordinance (EO), employees are entitled to take 12 days of statutory holiday including the first 3 days of Lunar New Year, Christmas Day and the first day of January. However, the law also provides that instead of allowing an employee to take a statutory holiday, an employer may grant an alternative holiday on another day within the period of 60 days immediately preceding or following the statutory holiday. On this basis therefore, an employer can legitimately request the employee to work on a statutory holiday.
On the other hand, under the EO, the time at which statutory annual leave is granted shall be determined by the employer after consultation with the employee. Therefore, even if an employee applies for annual leave during statutory holidays, the employer, taking into account its business needs, is entitled to refuse the employee’s request for leave.
Can an employee be deemed to have resigned from employment if he/she fails to show up for work without a valid reason?
Usually, in the context of termination, an employee has the right to terminate his/her employment contract by serving notice or by making payment in lieu of notice. The termination notice has to be served on the employer either orally or in writing. Accordingly, an employee cannot be deemed to have served a termination notice on the employer if he/she merely fails to show up for work. However, unauthorised absence from work can be considered a serious breach of the employment contract, in which event an employer may decide whether to take disciplinary action against the employee (including termination of employment) for the breach.