Set off for gratuities and occupational retirement scheme benefits
Under the EO, your employees may be entitled to Long Service Payment (LSP) or Severance Payment (SP) and, as an employer, you can offset the LSP/SP paid to your employees with the accrued benefits derived from the employer’s contributions (MPF).
The Chief Executive of the Hong Kong Special Administrative Region Carrie Lam Cheng Yuet-ngor’s cabinet on 2 October 2018 approved a proposal that drastically increases the subsidy the government offers to employers to stop them from tapping into staff pension funds. The government has tabled a proposal to the Executive Council to offer about HK$29 billion (US$3.7 billion) to employers over 25 years instead of the HK$17.2 billion (US$2.2 billion) over 12 years under its previous proposal. The move came amid the government’s attempts to scrap the controversial offsetting mechanism for the Mandatory Provident Fund (MPF) – the city’s pension scheme in which employers are allowed to offset their staff’s long service and severance payments with their employers’ contribution to employees’ MPF accounts.
Statutory grounds for summary dismissal (without notice or payment in lieu of notice)
The EO gives statutory force to the position at common law by giving an employer the right to summarily dismiss an employee in circumstances where the misconduct of the employee is sufficiently serious. Section 9 of the EO provides four grounds on which an employer may terminate a contract without notice or payment in lieu of notice:
- Wilfully disobeys a lawful and reasonable order;
- Misconduct herself in a manner in which the conduct is inconsistent with the due and faithful discharge of her duties;
- Is guilty of fraud or dishonesty;
- Is habitually neglectful of her duties; or
- Any other ground on which the employer is entitled to summarily dismiss the employee at common law.
Common Law grounds for summary dismissal (without notice or payment in lieu of notice)
The most common ground for summary dismissal arises where the employee has committed an act of gross misconduct. What amounts to gross misconduct is a question fact, which will depend upon the circumstances of each case, the nature of the employment and the nature of the responsibilities and of the tasks being performed, the standards and norms of the industry or profession within which the employment takes place, the terms of the particular contract of employment, and the social condition prevailing at the time of the contract. To this extent previous case law can give some guidance but is of limited value.
In the case of Cheung Chi Wah Patrick v Hong Kong Cement Co Ltd  HKCU 2291, upon the employer's appeal of the Labour Tribunal's decision, the Hong Kong Court of First Instance (CFI) considered whether an employer was entitled to summarily dismiss an employee on the ground that the employee had committed gross misconduct.
Also, when considering whether it was justifiable to summarily dismiss an employee on the basis of gross misconduct, the employer needed to ascertain why the employee committed such conduct. Without such consideration process, it was difficult to determine objectively whether the employee manifested an intention not to be bound by the employment contract. An employee could only be summarily dismissed if it was clear that he/she manifested such intention by conduct.
The High Court dismissed the appeal and held that if the employer was dismissing an employee summarily on the ground of his misconduct, apart from cases of serious neglect of duty or breach of confidence or incompetence, the employer has to show that the employee has demonstrated an intent not to be bound by the essential terms and conditions of the employment contract or has repudiated the contract. Otherwise, the employer can only terminate the employment contract by giving the necessary notice to quit or wages in lieu of notice and other compensations as the law may require.
Negligent performance of duties
Habitual neglect of the performance of an employee’s duties, or a single act of negligence or incompetence of a serious nature, persistent lateness or unauthorized or unjustified absence, insubordination, or wilful disobedience of a lawful and reasonable order have been ground upon which employers have successfully justified summary dismissal.
Other relevant favorable factors for summary dismissal (without notice or payment in lieu of notice)
- Employer must not allow conduct complained of to continue for too long prior to summary dismissal. An employee should ensure that the conduct complained of has not been tolerated in the past so as to amount to acquiescence of the behavior. The longer the conduct has been tolerated the less likely the court will be prepared to accept it amounts to misconduct justifying summary dismissal (WE Cox Toner (International) Ltd v Crook [1981))
- No warning required prior to summary dismissal. In general, there is no requirement to give either oral or written warnings as a disciplinary measure prior to proceeding to the summary dismissal of an employee.
- No requirement to conduct a disciplinary hearing prior to summary dismissal. There is no common law or statutory requirement to have a disciplinary hearing prior to a summary dismissal of the employee.