Currently, under Part VIA of the Employment Ordinance (“EO“), an employee may claim remedies against his employer in cases of unreasonable and unlawful dismissal, and request an award of remedies made by the Labour Tribunal (“LT“) which includes an order for reinstatement or re-engagement subject to mutual consent of the employer and the employee.
However, the limitation of the existing provisions is that, even if the LT finds that an order for reinstatement or re-engagement is appropriate, the LT has no power to make such an order without the employer’s agreement.
As such, the Labour and Welfare Bureau is currently preparing a draft bill to the Legislative Council to amend the EO to provide that where an employee who has been found to be unreasonably and unlawfully dismissed makes a claim for reinstatement or re-engagement, the LT may make an order for reinstatement or re-engagement without the need to secure the consent of the employer if the LT considers it appropriate and that the employer’s compliance with the order is reasonably practicable (“Compulsory Order“).
LT to consider circumstances of individual cases when making a Compulsory Order
It is proposed that in determining whether to make a Compulsory Order, the LT must take into account the circumstances of the claim such as the relationship between the employee and the employer, the circumstances surrounding the dismissal and whether the employer may face any genuine difficulties in complying with the order. Whether the employer and the employee are willing to accept such an order would continue to be an important consideration before the LT would make any order for reinstatement or re-engagement.
“Further Sum” payable on breach of Compulsory Order
Currently, when making an order for reinstatement or re-engagement subject to mutual consent, the LT shall specify the terms on which the reinstatement or re-engagement is to take place, including the date by which the employer must comply with the order, and in the event the employer fails to comply with the order, the amount of terminal payments and compensation that would be payable to the employee.
It is proposed that with the introduction of a Compulsory Order, the employer shall be liable to pay a “further sum” to the employee over and above the termination payments and award of compensation in the event the employer fails to comply with the Compulsory Order. The “further sum” will be a fixed amount that is not subject to the circumstances of individual cases and is to be set at three times of the monthly wages of the employee, subject to a maximum of $50,000.
It is further proposed that wilful non-payment of the “further sum” without reasonable excuse will amount to a criminal offence punishable by a fine of up to $350,000 and 3 years of imprisonment on conviction.
Re-engagement order to be directed at the employer only
Amendments have been proposed to clarify the existing provisions on re-engagement. It is proposed that the provisions on re-engagement should state clearly that a re-engagement order made by the LT shall be directed at the employer only and not at his successor or associated company. However, with the consent of the employee, an order for re-engagement can be taken to have been complied with by the employer if the successor or associated company of the employer re-engages the employee on the terms specified in the order.