XII. Termination/renewal of employment contract
A. Termination of the employment by notice or payment in lieu
Under Clause 2 of the standard Employment Contract, the term of employment of a foreign domestic helper shall be a period of two years commencing either on:-
- the date on which the helper arrives at Hong Kong;
- a specified date which is the date following the expiry of the previous employment contract with the same employer; or
- the date on which the Director of Immigration grants the helper permission to remain in Hong Kong to begin employment under the employment contract.
Nevertheless, according to clause 10 of the standard Employment Contract, either the employer or the foreign domestic helper may terminate the employment relationship prior to its expiry by giving not less than one month’s notice in writing or by paying one month’s wages to the other party in lieu of notice.
B. Termination of the employment without notice or payment in lieu
Under exceptional circumstances, either the employer or the foreign domestic helper may terminate the employment contract without notice or payment in lieu of notice.
An employer may summarily dismiss a foreign domestic helper without notice or payment in lieu of notice if the helper, in relation to his/her employment:-
- wilfully disobeys a lawful and reasonable order;
- misconducts himself/herself;
- is guilty of fraud or dishonesty; or
- is habitually neglectful in his/her duties.
However, employers should note that summary dismissal is a serious disciplinary action. It only applies to cases where a foreign domestic helper has committed very serious misconduct or fails to improve after the employer’s repeated warnings.
On the other hand, a foreign domestic helper may terminate his/her employment contract without notice or payment of wages in lieu of notice if:
- he/she reasonably fears physical danger by violence or disease;
- he/she is subjected to ill-treatment by the employer; or
- he/she has been employed for not less than 5 years and he/she is certified by a registered medical practitioner as being permanently unfit for the type of work he/she is engaged.
C. Notice to the Director of Immigration
If the employment relationship between an employer and a foreign domestic helper is terminated prior to the expiry of the contracted period (whether it is by notice, by payment in lieu or by immediate termination), both the employer and the foreign domestic helper shall notify the Director of Immigration by way of a Notification of Termination of Employment Contract with Foreign Domestic Helper within seven days of the date of termination.
A foreign domestic helper is permitted to remain in Hong Kong for not more than two weeks after premature termination of the employment contract. If the foreign domestic helper does not leave upon the expiry of stay, he/she will commit an offence for breaching his/her condition of stay. An employer should not do anything to facilitate the foreign domestic helper’s overstaying in Hong Kong, for example by agreeing not to inform the Director of Immigration of the premature termination of the employment contract. Such an act could make the employer liable for aiding and abetting the foreign domestic helper to breach a condition of stay by overstaying. Upon conviction, this may lead to a fine of HK$50,000 and imprisonment for 2 years.
D. Other payment, rights and benefits upon termination
In respect of termination of employment contracts, foreign domestic helpers enjoy the same protection as any employees under the Employment Ordinance. For example, he/she is entitled to receive:
- all outstanding wages;
- wages in lieu of notice (if applicable);
- payment in lieu of any untaken annual leave, and any pro rata annual leave pay for the current leave year;
- payment in lieu of any untaken statutory holidays; and
- where appropriate, long service payment or severance payment.
However, since the foreign domestic helper is “imported” into Hong Kong, an employer shall be responsible for sending him/her back to his/her country of origin upon the termination or expiry of an employment contract by providing him/her with free return passage to his/her place of origin.
Moreover, a daily food and travelling allowance of HK$100 per day shall be paid to the foreign domestic helper from the date of his/her departure from Hong Kong until the date of his/her arrival to his/her place of origin. As for the number of days for calculating the food and travelling allowance payable to the foreign domestic helper, it should be based on the time of journey by the most direct route. Generally speaking, for a foreign domestic helper whose place of origin is a country in Asia, allowance for one or two days would be reasonable and adequate.
There is no fixed rule as to whether an open-date air ticket or a fixed-date ticket shall be provided to the foreign domestic helper for his/her return flight. It is subject to the parties’ negotiation and agreement. It is not uncommon that some employers and their foreign domestic helpers may agree that money could be paid in lieu of the air ticket. The law does not prohibit such practice. But the employer should ensure that the details of the agreement are put into writing so that there is little room for dispute in the future.
E. Renewal of employment contract
If both the employer and the foreign domestic helper agree to renew an existing contract, the helper shall nevertheless return to his/her place of origin for a vacation of at least 7 days at the expense of the employer before the new contract commences. It means that the employer will have to provide a return air ticket to the helper in such scenario.
F. “Blacklist” kept at the Immigration Department?
There is always sayings that the Immigration Department has kept a “black list” of employers who has adverse record in respect of employment of foreign domestic helpers, for example one who has sacked many helpers within a short period of time, one who has been in breach of the standard Employment Contract, one who has been convicted of offence under the Employment Ordinance, etc. The Immigration Department certainly retains a record of all employments of domestic helpers; and it certainly can easily access the record of any individual employer in this respect. But it would be going too far to say that there is a “black list”, by which certain employers would automatically be barred from employing a foreign domestic helper. The Director of Immigration, who has a wide discretion to assess the eligibility of each application for employment of a foreign domestic helper, will evaluate each application on a case by case basis.