Introduction

The Legislative Council had passed the Employment (Amendment) Bill 2022 with minor amendments on 15 June 2022. The Employment (Amendment) Ordinance 2022 (“Amendment Ordinance”) took effect upon gazettal on 17 June 2022.

We will be presenting a webinar entitled “Employment (Amendment) Ordinance 2022 in the Wake of COVID-19” for the Hong Kong General Chamber of Commerce on Thursday, 28 July 2022 (3:30 p.m. – 4:30 p.m.) to discuss the legal and practical issues regarding the amendments to the Employment Ordinance (Cap. 57) (“EO”). Please click here for registration.

The Amendment Ordinance

The Amendment Ordinance seeks to give effect to the following three proposals:

1.       to make it explicit that the absence from work of employees for compliance with a requirement with restriction on movement imposed under the Prevention and Control of Disease Ordinance (“Cap. 599”) (except restriction imposed on people travelling to Hong Kong) will be deemed as sickness day(s) under the EO and to provide for sickness allowance to eligible employees absent from work under these circumstances, subject to the fulfilment of the relevant criteria under EO;

 

2.       to make it explicit that dismissal of an employee by reason of the employee being subject to restriction on movement imposed under Cap. 599 (except restriction imposed on people travelling to Hong Kong) is considered as unreasonable dismissal; and

 

3.       to make it explicit with a sunset provision that dismissal of employees due to refusal to receive vaccination without sufficient medical reasons after request being made by employers is not considered as unreasonable dismissal.

What is Unreasonable Dismissal?

If an employee has been employed under a continuous contract for a period of not less than 24 months and he is dismissed other than a valid reason under the EO, the employee may make a claim against the employer for unreasonable dismissal. Valid reasons include:

1.       the conduct of the employee;

2.       the capability or qualifications of the employee for performing his or her work;

3.       the redundancy of the employee or other genuine operational requirements of the employer’s business;

4.       the employment itself being in contravention of the law; or

5.       any other substantial reasons deemed by the court or the Labour Tribunal to be sufficient to warrant the dismissal.

 

The employer has the burden to prove that there is a statutory valid reason for the dismissal. Unless a valid reason is shown for that dismissal, an employee shall be taken to have been so dismissed because the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by the EO.

What is Unreasonable Variation of the
terms of the employment contract?

Similarly, if an employee has been employed under a continuous contract for a period of not less than 24 months and the employer, without his consent and, in the absence of an express term in his employment contract which so permits, varies the terms of his employment contract, the employee may make a claim against the employer for unreasonable variation of the terms of the employment contract.

The employer has the burden to prove that there is a statutory valid reason for the variation of the terms of the employment contract. Unless a valid reason is shown for that variation, the variation of the terms of the employment contract by the employer shall be taken to have been varied by the reason that the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by the EO.

Remedies for Unreasonable Dismissal or
Unreasonable Variation of the terms of the employment contract

If the Labour Tribunal finds the employer had unreasonably dismissed the employer or there was unreasonable variation of the terms of the employment contract, the Tribunal may:

1.       award terminal payments to the employee under the EO; or

 

2.       order reinstatement or re-engagement of the employee (if employer and employee agree).

 

If the dismissal is both unreasonable and unlawful,[i] the Tribunal may award monetary compensation to the employee (up to HK$150,000) as it considers just and appropriate.

 

Amendments to the Employment Ordinance

Amendments regarding Unreasonable Dismissal

The main changes regarding unreasonable dismissal are:

1.       dismissal of employees due to refusal to receive vaccination without sufficient medical reasons after request being made by employers is not considered as unreasonable dismissal (“Valid Reason Amendment”); and

 

2.       absent from work due to employee’s compliance with the Cap. 599 does not constitute a valid reason for dismissal or variation (“Not Valid Reason Amendment”).

The Valid Reason Amendment

Under the EO, one of the five valid reasons for dismissal or variation of the terms of the employment contract is “the capability or qualifications of the employee for performing his or her work”. Under the proposed amendment, an employee fails to comply with the employer’s “legitimate vaccination request” is regarded as being incapable of performing work of the kind which the employee was employed to do.

What is a “legitimate vaccination request”?
What are the conditions?

Legitimate vaccination request:

1.       The request must be in writing and made to all employees (who performs the same or similar type of work).

 

2.       Without limiting the ways in which a written request is made, a written request is so made to an employee if there is posted in a conspicuous place at the place of employment a notice that –

 

a.       contains the request; and

 

b.       is addressed to all the employees, or a group of employees to which the employee belongs, of the employer.

 

3.       The request is one that requests the employee to produce, within 56 days from the date of the making of the request, to the employer:

 

a.       If the place of work is in any premises or a public transport carrier, which is subject to a Vaccine Pass requirement – a record, document or information showing that the employee has complied with the Vaccine Pass requirement.

 

b.       If the Government imposes a requirement or makes a recommendation (other than the Vaccine Pass requirement) that persons who perform a particular type of work are to be (or should be) vaccinated with a certain number of dose of a vaccine under the Prevent and Control of Disease (Use of Vaccines) Regulation (Cap. 599K) – a record, document or information showing that the employee has complied with this requirement or recommendation. This also does not apply to an employee who is exempted from the Vaccine Pass requirement.

 

c.       If no (a) Vaccine Pass requirement or (b) other Government’s requirement or recommendation – record, document or information showing that the employee has at least one dose of vaccine.

 

4.       When making the request, the employer reasonably believes, having regard to the nature of the employee’s work and the related operational requirements, that if the employee contracts the specified disease, the persons with whom the employee may come into face-to-face contact when the employee performs the employee’s work will be exposed to the risk of infection.

 

5.       The request is not made:

 

a.       to any employee who is exempted under the Vaccine Pass requirement; or

 

b.       where only one dose of vaccination is required (see 3(c) above), the employee who is (i) pregnant, (ii) breastfeeding, (iii) certified to be unsuitable to be vaccinated and (iv) certified to have recently recovered from the specified disease.

 

6.       It is noteworthy that the new provisions in respect of the legitimate vaccination request are not meant to be lasting. The relevant provisions will be repealed on a day to be appointed by the Commissioner for Labour by notice published in the Gazette, when the COVID-19 pandemic has finally come to an end.

Not Valid Reason Amendment

An employee’s absence from work due to compliance of “Cap. 599 requirement” will not be a valid reason for dismissal or the terms of the contract employment varied.

A “Cap. 599 requirement” is defined under the Amendment Ordinance as a requirement under the Prevention and Control of Disease Regulation (Cap. 599A) (“Cap. 599A”) or Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (Cap. 599J) (“Cap. 599J”):

1.       where the employee is placed under quarantine or isolation or is within a place that is placed under isolation (ss. 22(4), 23(3) and 29(2)(b) of Cap. 599A) (e.g. persons being infected with COVID-19 or persons in close contact);

 

2.       not to leave a particular place under a compulsory testing notice (s. 10(1) of Cap. 599J);

 

3.       not to leave a particular place under a compulsory testing order (s. 14(2) of Cap. 599J); or

 

4.       not to leave any restricted premises to which a restriction testing declaration is in effect (s. 19C(1) of Cap. 599J).

 

The Cap. 599 requirement does not cover compulsory quarantine on return to Hong Kong from overseas required under Compulsory Quarantine of Persons Arriving at Hong Kong from Foreign Places Regulation (Cap. 599E) and, therefore, not protected by the Not Valid Reason Amendment.

Sickness Day Amendment

The definition of “sickness day” in the EO will be amended to include a day on which an employee is absent from work by reason of the employee’s compliance with a Cap. 599 requirement.

The evidence required to be produced by the employee for the day to qualify for “sickness allowance” is:

1.       a document (in hard copy or electronic form) issued by a public officer or any person on behalf of the Government that shows the “prescribed information” relating to the employee, or

 

2.       electronic data, access to which can be obtained, by telecommunications, in a manner specified by a public officer that shows the “prescribed information” relating to the employee.

 

“Prescribed information” means:

1.       the name of the employee who is subject to the Cap. 599 requirement (or information that could identify the identity of the employee);

2.       the type of the restriction imposed by that requirement; and

 

3.       the commencement date and the expiry date of the period for the restriction imposed by that requirement.

What are the effects of the Amendments?

Valid Reason Amendment

1.       It will not be unreasonable to dismiss an unvaccinated employee. Employers may regard that employees must have received at least one dose of vaccine (or the then required minimum dose under the Vaccine Pass requirement) in order to perform work of the kind that the employee concerned was employed by the employer to do.

 

2.       The Valid Reason Amendment empowers employers to boost vaccination rate of their employees.

Not Valid Reason Amendment

3.       An employee who is absent from work due to compliance of a Cap. 599 requirement will not be a valid reason for dismissal or variation of terms of the employment contract.

 

4.       An employee, who has to comply with a requirement under a compulsory testing notice or a compulsory testing order (likely to be less than 4 days), will be protected by the Not Valid Reason Amendment.

Sickness Day Amendment

5.       An employee who is placed under quarantine or isolation (likely be four or more consecutive sickness day) will be protected by the Not Valid Reason Amendment as well as from dismissal under s. 33(4B) of the EO, which makes the termination of an employee entitled to statutory sickness allowance (other than by way of summary dismissal) unlawful.

 

6.       If the employee is absent from work for 4 or more consecutive days as a result in complying with a Cap. 599 requirement, the employee will be entitled sickness allowance (provided the other requirements under the EO are satisfied).

Takeaway

The Amendment Ordinance seeks to minimise disputes between employers and employees result from COVID-19 and the effort of fighting the epidemic.

As the Amendment Ordinance took effect upon gazettal on 17 June 2022, amendments relating to “unreasonable dismissal” would not have retrospective effect to cover employees dismissed before the date of gazettal of the enacted Ordinance. We discussed the topics of “Can employers dismiss unvaccinated employees who cannot go to work as a result of the vaccine pass arrangement?” and “Vaccine Pass, proposed amendments to the Employment Ordinance, and before the new law is passed: Can employers dismiss unvaccinated employees?” the January and February 2022 editions of our employment newsletter.

Employers and employees should seek legal advice if they have any doubts as to their rights and obligations under the amended EO and the amendments.

For enquiries, please feel free to contact us at:

E: employment@onc.hk                                                    T: (852) 2810 1212 W: www.onc.hk                                                                    F: (852) 2804 6311 19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2022