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When the employer dies

10 February 2019

It is now very common to see migrant domestic workers (MDW) caring for the elderly. You see them on the streets, in parks, restaurants, hospitals, and homes for the elderly. It is also no longer unusual for the elderly employer to pass away within the employment contract period. Often, relatives of an elderly employer who passed away take over the responsibility of settling all claims related to the untimely termination of the contract. However, there are also those who live alone with the elderly, and face an uncertain wait for someone who would take responsibility over the obligations left by the deceased employer. This may also happen to those whose wards live with their family, but no one wants to take responsibility for paying the worker’s claims.

On top of these, there are certain misconceptions with regards the employment contract:

1.      There are those who think that when the employer dies, the employment contract will automatically transfer to the next of kin staying in the same address as that of the deceased employer; or

2.      That the unpaid benefits, salaries, and other contractual obligations of the deceased employer cannot be claimed anymore because the employer is already dead; or

3.      That because the death of the employer is considered as an exceptional situation they are allowed to look for a new employer even after two weeks from the death of the employer.

These are just some of the examples. There may be more.  So, let us first clarify and correct these misconceptions.

1.      When the employer dies, (‘employer’ refers here to the person who signed the contract), the employment contract ends. There is no such thing as ‘automatic’ transfer of contractual obligations. It should be taken as if the contract was terminated if it is in the middle of a two-year contract. The next of kin cannot just decide to continue the contract without signing a new contract under his/her name. The domestic worker’s visa will expire in 14 days. If one of the members of the family wants to continue hiring the domestic worker, a new contract must be signed and should undergo the usual processing. All new policies like upgraded minimum allowable wage will be applied in the new contract. It is not a continuation of the previous one. It is a new contract under a new employer.  In some instances, if there are personal belongings of the deceased that need to be sorted out, packed or dealt with for whatever reason, the next-of-kin could inform the Immigration Department that such is the situation and the MDW’s continued services are still needed, but only for the purpose of settling matters directly connected with the deceased employer.
2.      With regards to all unpaid wages (benefits and salaries), of course, these can still be claimed by the domestic worker through the official representative of the deceased or the person in-charge of the properties and estate, if any, of the deceased employer. If disputes arise like unwillingness to pay, then it will pass through the usual process of filing the claims through the Hong Kong Labour Department. The domestic worker will file claims against the representative at the Labour Relations Division (LRD). If it is not settled there, it will be referred by the LRD to the Labour Tribunal (LT) or the Minor Employment Claims Adjudication Board (MECAB), depending on the total amount of claims. If it is still unresolved, then the domestic worker will bring the decision of the Labour Tribunal or MECAB to the District Court. At the level of the District Court, a lawyer may be needed to represent the claimant and help prepare documents needed. At some stage, you may be able to represent yourself but court orders or instructions are better understood by lawyers. The judge will tell you this. Service providers like the Mission can provide the necessary assistance in filing the claims at the District Court and referring the matter to a qualified lawyer. The Mission can also help in referring the matter to a government agency that can assist the claimant who has no means of hiring a lawyer.

3.      When an employer dies, it is public knowledge that such situation exempts the MDW from returning home to her country of origin before a new contract is approved. But the processing of the new contract should still be done within the 14-day grace period. This means that the domestic worker should have found a new employer, and started to process the new contract, before the lapse of the two-week period since the employment contract was deemed terminated. If she or he failed to find a new employer and the visa has been changed to a visitor’s visa because the required 14 days have lapsed, the Immigration Department might still require the worker to leave Hong Kong and process the contract from the country of origin. This is because, technically, the worker is already holding a visitor’s visa, and not one for employment which could be transferred to another employer. But there is no harm in trying to ask Immigration for consideration in such cases.

4.      Another matter that we must be aware of is, if the death of the employer happened after two years of employment, meaning within the period of the second contract, then the domestic worker can claim for severance pay. This is because the termination of the contract can be considered as a redundancy or a “lay-off”. In this case, the required number of years in service is only two years. The claim for severance pay can be included in the charges to be filed at the Labour Relations Division against the estate of the deceased, if the representative refused to pay the said benefit. (Note: the amount of severance pay is two-thirds of the last month’s salary multiplied by the number of years of service.)

Should there be any other similar situation that is unclear or difficult to ascertain, do not hesitate to contact the Mission For Migrant Workers at 2526 2894.

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