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Constructive termination

18 September 2018

By Cynthia Tellez

“Constructive termination” sounds new to many of those who visit the Mission’s walk-in centre. Some migrants get confused because of certain “feedback” they receive from the Labour Relations Division (LRS) or even from the Labour Tribunal (LT) or Minor Employment Claims Adjudication Board (MECAB). Some officers there say that constructive termination does not automatically result to claims of one month’s wage in lieu of notice. In some cases the workers are even advised to withdraw said claim. Pursuing it at the LT or MECAB usually results to the dismissal of the claim.

Before we proceed to the main issue, let me first clarify some matters related to the mentioned government agencies.

The Labour Relations Division or the LRD is the first stop for workers trying to settle a dispute with their employers on money claims, or violations of some provisions of the Labour Ordinance as stated in the employment contract. This first step is to settle matters through conciliation. Meaning, an LRD officer acts as facilitator between the employer and the domestic worker. If the monetary claims are not contested by the respondent (either employer or domestic worker), the matter is settled at that level. In the presence of the labour officer, the employer will hand the payment to the domestic worker and they will both sign a document from the LRD as proof that the claims had all been settled. If it is not settled, or is only partially-settled, then the LRD will refer the claims to either LT or MECAB.  This is the only role of the LRD. The officer can give his/her opinion but cannot force the claimant to follow his/her advice.

The LT or MECAB are like courts but they do not handle criminal cases. They handle only employer and worker disputes related to claims. But the atmosphere is like that in a courtroom. The presiding officer can decide on the claims being heard, unlike the LRD which cannot decide but can only give an opinion. Evidence could be presented in order to win the claim/case against the employer. As mentioned earlier, LT and MECAB can decide but they have NO power to enforce their decision. It can be contested in the LT itself or referred to the High Court for enforcement with a lawyer representing the claimant. But this is another matter.

In the LT or MECAB, to expedite the settlement of claims, both the claimant and respondent are encouraged to settle their dispute outside the Tribunal and come back for a formal resolution if they could come to an agreement. If not, then the Tribunal or MECAB will proceed with the hearing to decide on the items being claimed.

The claimant can still appeal against the decision on one or several of the claims dismissed by LT if the claimant insists that s/he does not want to drop any particular claim/s.

Now for the issue at hand: constructive termination.

Let us be clear first on what is constructive termination of the employment contract.

According to the contract (based on the Employment Ordinance Cap 57)
An employee may terminate his/her contract without notice or payment in lieu if:
* he/she reasonably fears physical danger by violence or disease, such danger not being contemplated under his/her contract
*he/she has been employed under his/her contract for not less than five years and is certified as being permanently unfit for the type of work he/she is engaged to do; or
* he/she is subjected to ill treatment by his/her employer.
“An employee may also terminate his/her contract without notice or payment in lieu on any other ground on which the employee would be entitled to terminate his/her contract without notice at common law, or if any wages are not paid to him/her within one month of the date upon which they become due. An employee exercising his/her right to terminate in such circumstances is deemed to have been dismissed by his/her employer and so is entitled to recover a payment in lieu of notice.” 
—http://www.elexica.com/en/legal-topics/employment-and-benefits/07-termination-in-hong-kong

It is in this light that even if the labour officers in whatever branch of the LD gave you an unsolicited advice, it will still be you who will decide whether you want to accept the said advice.

In the case of the LT or MECAB, they will have to decide anyway on the basis of their appreciation of the merits of the claims based on the statement of both the claimant and respondent - and the evidence presented - should the parties fail to settle amicably. Thus, the best option is just to let the LT Presiding Officer or MECAB Officer decide.

As far as the above explanation is concerned and as far as the experiences of claimants assisted by the Mission in its consultation with some solicitors (lawyer), the constructive termination taken by a domestic worker is a last resort to protect themselves for further harm. A good ground that the worker may be cite is the employer’s non- payment of wages within the designated period. This act of the employer which is a serious breach or violation of the employment contract is deemed to amount to the dismissal of the worker, who must then be entitled to recover a payment in lieu of notice.

For justice’s sake, it would be better to pursue what is justly yours. If your claim for a month’s salary in lieu of notice on the basis of constructive dismissal is dismissed by the LT or the MECAB, you still have an avenue left to appeal against the decision. There is nothing to lose, but there is everything to gain. The decision of any Court can still be contested and this is the essence of fairness and justice. Let us not waste this.

The outcome, whether favourable or unfavourable, would still be helpful in guiding other migrant workers on what actions to take, and to us also in the Mission, in our effort to help others pursue their claims.

If you need more clarity on this matter or on any matter concerning your employment, you can visit us in our office at St John’s Cathedral, or call us at 2522 8264 or 2537 1333.
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This is the monthly column from the Mission for Migrant Workers, an institution that has been serving the needs of migrant workers in Hong Kong for over 31 years. The Mission, headed by its general manager, Cynthia Tellez, assists migrant workers who are in distress, and  focuses its efforts on crisis intervention and prevention through migrant empowerment. Mission has its offices at St John’s Cathedral on Garden Road, Central, and may be reached through tel. no. 2522 8264.

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