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Termination of contract while on leave

16 June 2019

By Cynthia Tellez

Our topic for this issue is prompted by cases that are getting quite common, of migrant domestic workers’ contract being terminated by the employer while the worker is in the Philippines on vacation or an emergency leave. The workers have prior permission to leave, often for a holiday or to attend the funeral of their next of kin, or to attend to someone in the family who is in a serious condition. In other words, they were away for legitimate reasons and were permitted by their employers to take the vacation or the emergency leave.

But while away, the workers receive a termination letter stating that they cannot come back to Hong Kong anymore because their employers had terminated their contracts, and had informed the Immigration Department about it. These inconsiderate, sometimes vindictive employers, refuse to realize the compounded problems they have given their workers.
Distressed, suddenly unemployed, confronted with medical bills and more, the domestic worker may not know what to do.

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Let us clarify the issue and suggest some steps to take.

First, know that conditions regarding termination are very clear in the Standard Employment Contract. Clause number 10 says that whoever wants to terminate the contract must issue a one-month-notice of termination or pay an equivalent of a month’s salary of the domestic worker. This, apart from other claims such as annual leave pay (if one had worked for at least three months), arrears of wages and others as per the employment contract. There are some steps that can be followed to claim for one’s entitlements.

So, if the employer did not follow the provisions in terminating the contract, the domestic worker definitely has the right to claim for a month’s salary in lieu of notice and other termination payments.

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But because the worker is not in Hong Kong to file the claims let us look at the different options:

If you still have a valid ticket to Hong Kong, you can come back. Even if the contract has been terminated by your employer, as a Filipino passport holder, you should be allowed to enter Hong Kong for 14 days with such permission (visa) given upon arrival.

But because the employer may have informed Immigration about the termination of the contract, the immigration officer will see this in their record.  Do not be intimidated. Do not panic. You have not committed any offence. The officer may try hard to send you back home, but you can insist that your coming back is because your employer had violated your employment contract and you want to file a claim at the Labour Department. If still prevented by the officer, insist that you want to talk to their superior to explain the situation.

Remember, you are just insisting on implementing the Labour Ordinance (Law) of Hong Kong and that the employer is the one who violated that law. You will in fact act as a claimant based on your contract of employment and as a witness if ever the Labour Department files a case against the employer for breaching or breaking the contract. “An employer who willfully and without reasonable excuse fails to pay termination payments when they become due is liable to prosecution…”

There are also cases where the domestic worker does not know of the termination because she/he was not informed at all. She learns about it only upon arrival in Hong Kong, from the Immigration officer. But as you must have a copy of your employment contract, show the officer Clause No. 10 which states the conditions for terminating the contract. Tell the officer that you will file your claims at the Labour Department because of the contract violation of your employer. Be insistent because you are not the one at fault, but your employer. They cannot charge you for stubbornly insisting on your right.

If you were allowed to enter Hong Kong, then you can file the necessary claims due you. It would be better if the Mission’s assistance is sought to accurately know the items to claim based on the contract, along with the computation, before filing your case at the Labour Department.

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If the situation is such that one has no means to come back to Hong Kong, there is still a strong possibility of getting your claims. As per Philippine government policy, a domestic worker is deployed to Hong Kong through a recruitment agency. In this case, you can file claims against the agency at the POEA. The agency will be made to answer for the violation of your work contract by your employer. The agency will be held liable to ensure that the employer abides by the contract, by filing the following claims:
i. All contractual obligations of the employer.
ii. There being an unlawful termination, you can also claim at the POEA compensation equivalent to the remaining period of the employment contract (RA10022 revised RA 8042 or the Migrants Act of 1995).
iii. If uncertain, you may send a message to the Facebook page of the Mission For Migrant    Workers, explaining your problem for referral to a service provider in the Philippines to assist you in your claims. We can find other possibilities in addressing this, collaborating with other migrant-serving institutions; and,
iv. Last, but not the least, if you paid placement fees in the Philippine-based agency, you may also include in your claims at POEA the illegal fees you were made to pay. This also needs detailed background story.

Since December 2006, all Philippine passport holders leaving the country for household service work overseas are not supposed to pay any agency fees. A violation of this may fall under Illegal Recruitment Act.

Should all these fail at POEA, file the claims at the National Labor Relations Commission (NLRC) of the Philippine Labor Department. This is where a Philippine-based service provider and pro bono lawyer are most needed.

If there are other questions concerning this topic, please call the Mission at 2522-8264.

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. 2522 8264.
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