XIII. Some other commonly envisaged issues
A. Deduction of wages?
Your domestic helper was quite helpful in doing household works, but was a bit careless and frequently broke your dishes, cups, your kid’s toys, etc. Can you deduct the value of these items from the helper’s wages?
The law allows an employer to make deductions for damage or loss to the employer’s goods or property directly attributable to the helper’s negligence or default. This right to deduction, however, is subject to the limit of HK$300 for each damaged item. So even if your domestic helper flushed your diamond ring down the toilet, you can at most deduct HK$300 from his/her salary.
Further, the total of such deductions shall not exceed one quarter of the wages payable to the helper in that wage period. For example, if you are paying your foreign domestic helper the monthly salary of HK$4,410, and if he/she negligently broke 5 valuable porcelain items (each worth more than HK$300) in a month, you can at most deduct HK$1,102.50 (being one quarter of HK$4,410), not HK$1,500 (being HK$300 x 5 items) from the helper’s salary for this month.
Well, you may argue: can I deduct HK$900 from this month’s salary, and then HK$600 from next month’s salary? After all, section 32 of the Employment Ordinance (Chapter 57 of the Laws of Hong Kong) only says that “the total of such deductions in any one wage period shall not exceed one quarter of the wages payable to the employee in respect of that wage period”; it does not specify that all deductions have to be made within one wage period. Your argument may seem cogent; yet the words “the total of such deductions” suggest that such “total” should correspond with the damage/loss incurred within the same “wage period”. It is believed that the Court will adopt this approach if being asked to interpreted section 32 of the Employment Ordinance.
B. Installation of camera inside your home
You wanted to install a camera inside your home so that you can monitor your domestic helper’s acts during your absence. But you wondered whether this would infringe the law on privacy.
Your worry is fully justified. But a further question to be asked is: what exactly is meant by privacy? It is beyond dispute that a toilet/bathroom or the domestic helper’s private room is a private place; and no camera can be installed at such area. But what about the living room, an area where anyone in your household can access anytime? Basically a person cannot have any privacy if he/she is in an environment where anyone can see him/her. For example, if a reporter takes a photo of a pedestrian jaywalking and posts that photo on a newspaper, the pedestrian cannot complain that his/her privacy has been infringed. Similarly, the living room of your home can be considered a “public” place because everyone in your household can freely access this area anytime. Therefore, a camera installed at the living room should not infringe the privacy of anyone.
However, it can also be argued that the domestic helper may do some private thing in your living room when nobody is at home; videotaping activities at the living room may therefore constitute intrusion upon his/her privacy. Therefore, it is suggested that employers should conduct the video monitoring by overt means, for example by telling the helper about the camera or by setting the camera at an unhidden location. It is only under exceptional circumstances that covert videotaping should be adopted. For example, if you seriously suspect and have evidence that young children or elderly persons at your home are being abused, you may consider using covert means, for example hidden camera, to monitor your domestic helper’s activities.
C. Child abuse or theft
If you have concrete evidence that your domestic helper has abused your child or has stolen your property, do not hesitate to report the case to the police. These are criminal activities and should not be pardoned nor be settled by private means.
If you do not have concrete evidence but suspect that your domestic helper has abused your child or has stolen your property, you may as well report the case to the police. It is the police’s duty, not yours, to conduct investigation on any suspicious case. An alternative is that you may try to gather more evidence, for example by installing a camera inside your home and taking the right footage, before reporting the case to the police.
D. Is an employer liable for acts done by the domestic helpers?
Your domestic helper brought your son to school; on the way, she tried to buy a can of soft drink for your son from a vending machine; but she somehow negligently damaged the vending machine. Would you be liable to pay for the damages for the vending machine?
There is a legal concept known as “vicarious liability”, which means that an employer can be liable for acts done by an employee if such acts take place in the course of employment. The key question, therefore, is whether the subject act was committed by the employee in the course of his/her employment or when he/she is acting in a personal capacity. In the above example, the vending machine was apparently damaged in the course of the helper’s employment (in particularly when she was trying to buy the soft drink for your son). It is therefore likely that you will have to be responsible for her negligent act.
Now consider this: you told your domestic helper to go to the market to buy some grocery; on her way, she went into a mobile phone shop to look for a mobile phone for her own use; then she negligently damaged a brand new mobile phone at the shop; would you be liable to pay for the damages? Certainly the incident happened during a time when the helper was in the course of employment (i.e. when she was going to buy grocery for your household); but is the act of damaging the phone done in the course of employment? Probably not. The domestic helper was looking for a phone for her personal use; this act was not in any way related to her employment. In such circumstances, even if she was employed by you during the time of the incident, it seems that the damaging act was not done in the course of employment; you should not be held liable for this incident.
E. Is an employer liable for debts incurred by the domestic helpers?
It is widely known that employers of foreign domestic helpers have been the subject of harassment by loan sharks because the helpers have absconded after borrowing money. Employers have to be aware that they do not have any duty at all to repay any indebtedness due by the domestic helper to any person. Anyone who claims to be the creditor of your domestic helper can only go after the helper, not you.
On the other hand, if an employer lends money or pre-pays wages to his/her foreign domestic helper, it is entirely a matter between them. As with most contractual relationship, the parties would benefit by having a well drafted agreement between them. It is therefore advisable for the employer to put down the lending or pre-payment agreement in writing.
F. Discrimination against a foreign domestic helper?
One major component in employment law is the law on discrimination. Hong Kong discrimination laws can broadly be classified into the following categories: sex discrimination, disability discrimination, family status discrimination and race discrimination. In respect of foreign domestic helpers, employers should be most vigilant on the possibility of sex and race discriminations.
1. Sex discrimination
One most easily encountered case of sex discrimination is of course related to the pregnancy of a foreign domestic helper. Section 8 of the Sex Discrimination Ordinance (Chapter 480 of the Laws of Hong Kong) expressly prohibits any ill-treatment by an employer against her pregnant employee. For example, if an employer demands a pregnant employee to perform strenuous and labourious duties, that may constitute an act of discrimination.
Section 15 of the Employment Ordinance (Chapter 57 of the Laws of Hong Kong) also prohibits the dismissal of a pregnant helper from the date on which she is confirmed pregnant by a medical certificate to the date on which she is due to return to work on the expiry of her maternity leave, except in cases of summary dismissal due to the helper’s serious misconduct. An employer who contravenes this section 15 is liable to prosecution and, on conviction, a fine of HK$100,000; he/she will also be required to pay the helper wages in lieu of notice, a further sum equivalent to one month’s wages as compensation and 10 weeks’ maternity leave pay if, but for the dismissal, the helper would have been entitled to such payment.
2. Race discrimination
Anyone with some common sense would know that an employer cannot employ or refuse to employ a person based on his/her race. But obviously the scheme of Foreign Domestic Helpers is to allow Hong Kong employers to engage helpers of a different race. In such case, wouldn’t the scheme itself be a massive discrimination exercise conducted by the Government? Fortunately our legislators have foreseen this issue and provided under section 10 of the Race Discrimination Ordinance (Chapter 602 of the Laws of Hong Kong) that it is not “unlawful for a person to discriminate against another person on the ground of the race of that other person, in connection with employment to perform domestic duties”. This of course applies only to the employment stage in respect of a foreign domestic helper. Any act of discrimination in the course of employment will still be subject to the laws on race discrimination. For example:
- if your foreign domestic helper is a female muslim, you cannot forbid her from wearing her hijab; and
- if you make offensive racial jokes against your helper or if you use a disparaging or offensive tone when communicating with your helper on the ground of his/her race, that could constitute racial harassment.
To know more about how Hong Kong laws prohibit discrimination, please read the other topic: “Anti-discrimination”.