By Cynthia Tellez
Clause number 10 on page two of the Standard Employment Contract for Hiring Domestic Helper from Abroad says: ‘Either party may terminate this contract by giving one month’s notice in writing or one month’s wages in lieu of notice.’ Clause 12 says that a copy of such termination notice should be sent to the Immigration Department.
‘Either party’ refers to both the Employer and the Helper (referred to here as the ‘worker’) who signed the contract. So any one of them can terminate the contract by giving a month’s notice of termination. This should be done in writing. Proper notice should be given to the other party, otherwise, the party who wishes to terminate the contract without giving a month’s notice will have to pay an equivalent amount of the worker’s one month’s wage.
In some of the Mission’s cases, there are employers who refuse to give a written notice of termination. If this happens, it is highly suggested that the worker her/himself writes to the employer stating that she/he acknowledges the termination of their contract initiated by the employer, given verbally on such a date and time, describing the circumstances briefly, and the date of her/his last working day. She can also state that s/he expects the employer to pay her a month’s wage in lieu of notice, apart from all the items due her according to the contract, such as arrears in wages, payments for days-off and statutory holidays that were not taken, annual leave, severance or long service payment when applicable, official expenses with official receipts, travelling allowances, and return air fare/ticket.
There are situations when the domestic worker is driven out of employer’s house/flat even at midnight or in the early hours of the morning, with no written notice of termination, Worse, the domestic worker would be forced to write and copy or simply sign a prepared resignation letter; and in the most extreme case, forced to sign a blank piece of paper.
We will discuss this in detail below. In such circumstances, as a worker, you have the right NOT TO SIGN anything against your will, or anything that you do not understand, specially if you are in a state of shock because of the unexpected turn of events. Note that it is grueling to prove that you were ‘forced’ to sign. Authorities will ask you questions like ‘Were you threatened with a knife or a gun to force you to sign?’ We understand that you are not in a “neutral” place especially if you do not get along well with your employer. It is not easy to argue. Some people do not listen to explanations or may even get angrier if you explain. Nevertheless, it is your right to say something to explain your side, and to resist if you are being forced to do something against your will..
If you are forced to write and copy or simply sign a prepared resignation letter, remember very well every detail of that incident and write it in your diary, even describing the clothes, jewelry, and everything that you were wearing at the time of the incident, where it happened, who were present, and what they were doing while this was happening. These pieces of information are very important to support your case.
If you are being paid your wages, but you are not sure if the amount is sufficient, do not get the air ticket. It can wait until you are certain that the amount given to you is correct. Air tickets expire if you do not use them on the scheduled flight. You can always claim it, together with the rest of the items you need to claim, through the Hong Kong Labour Department. But because you received some payment, it is necessary that you acknowledge the receipt in writing and sign right after the sentence stating the exact amount that you received. NEVER leave a space where others could insert a word, a phrase, or a sentence. You may sign anywhere but draw a line from the last word to your signature. That line signifies a blank space upon your signing.
Try to take a photo of what you signed, if possible.
Try your best to stay calm and call a friend or the Mission (97409 406 or 9488 9044) for help. That way, you can have someone to help you with your belongings, someone who can stand as witness to what happened to you, and help you to avoid signing unnecessary “agreements.”
But, according to Clause 11: ‘Notwithstanding Clause 10, either party may in writing terminate this contract without notice or payment in lieu in the circumstances permitted by the Employment Ordinance Chapter 57.’
This is true. The worker may terminate the contract without notice or payment in lieu in certain circumstances like if the worker reasonably fears physical danger by violence or disease in the workplace, or if the worker is subjected to ill-treatment in the household, and the like. Similarly, an employer may terminate the contract without notice in certain situations, such as when the worker refuses to follow a lawful order or when the worker is consistently negligent of her/his duty.
To explain further, if any member of the household threatens to attack or actually attacks you physically, or if you fear you might get a disease present in the household, there is no need to stay and you have the right to leave without giving a month’s notice.
Likewise, if you have suffered prolonged ill-treatment, contract violations, or abuse that you can document to prove your allegation, you can leave without a month’s notice. Remember that all of the above can be used only if you have sufficient evidence. This is precisely the reason why keeping a diary is crucial. This will also help you recall related incidents because there are certain situations that may qualify you to claim a month’s wage in lieu of notice.
Finally, we discourage the use of the term ‘break contract’ because that means that you are not following the terms of the contract.
rise that working hours of domestic workers are long and arduous. No matter how much you take care of yourself to avoid sickness or injury, due to the nature of your work and Hong Kong’s confined spaces, being under the weather is unavoidable. Many do not get enough rest, sleep, or appropriate and nutritious food. It is for these reasons that knowing your rights regarding illness and injury is important.
Clause 9 of the ID 407 (or Employment Contract For a Domestic Helper Recruited From Abroad) deals with injury and illness of the domestic worker while employed here in Hong Kong. It states that:
“9. (a) In the event that the Helper is ill or suffers personal injury during the period of employment specified in Clause 2, except for the period during which the Helper leaves Hong Kong of his/her* own volition and for his/her* own personal purposes, the Employer shall provide free medical treatment to the Helper. Free medical treatment includes medical consultation, maintenance in hospital and emergency dental treatment. The Helper shall accept medical treatment provided by any registered medical practitioner.
(b) If the Helper suffers injury by accident or occupational disease arising out of and in the course of employment, the Employer shall make payment of compensation in accordance with the Employees’ Compensation Ordinance, Chapter 282.
(c) In the event of a medical practitioner certifying that the Helper is unfit for further service, the Employer may, subject to the statutory provisions of the relevant Ordinances, terminate the employment and shall immediately take steps to repatriate the Helper to his/her* place of origin in accordance with Clause 7.”
As we can glean from this text, every employer in Hong Kong is required to get employee’s compensation insurance for their domestic worker. Getting medical insurance for the employee is encouraged, not required. However, if you sustain an injury during the course of your work for your employer (say, you slipped and fell while carrying grocery items), your employer should pay for your medical needs. The law says that you should agree to your employer’s decision regarding treatment, as long as the doctor is a registered medical practitioner.
If your employer opts or agrees to send you home to be treated, do make sure that you have a recorded agreement that she or he will shoulder your medical treatment while in your home country, and that you are to come back after treatment. This document (or recording) will come in handy should you pursue this further.
If for example, on your last day of sick leave, you still feel ill, you should go back to the doctor the next day. This is for your wellness.
Furthermore, this is as well for public safety. You do not want to spread a virus in Hong Kong’s cramped living spaces, as the rate of contaminating others will be faster. You must do this even if you have not set an appointment with the doctor, or you have not asked your employer’s permission.
Your sick leave allowance is four-fifths (4/5) of your average daily wage. This can only be claimed if you have been on sick leave for four days or more. You shall receive this allowance on the next pay day. Whether you can claim this or not, if you are still feeling ill, it is your civic duty to bring yourself back to the doctor.
There are some employers who do not honor medical certificates, and instead, make their domestic workers still work. You should still keep the certificate for future claim even if your illness or injury was not a result of your work. Note clause 9(a) of the contract as stated above.
Regarding claims, you must inform your employer as soon as possible that you have been injured. Your employer should then inform the Labor Department. If your employer is unable to inform the Labor Department, you must inform them immediately. Then the Labor Department will inform you of the process.
It is important that you keep all related documents from the hospital. This includes medical records, certificates (for your sick leave), doctor’s prescription, etc. As much as possible, have lots of copies of these documents. Have a copy of each document for your own records. When filing employees’ compensation, make a document stating in a list the documents you have attached. Have this signed by a staff of the Labor Department or have them officially stamped or chopped with “Received” including the date when the documents were submitted. This document is your receipt, proof that you did file the claim with the required documents. Also ask for the telephone number you can call when following up the claim, as well as the name of the person you should talk to when following up. Get as much information as you can.
There are times when the Employees’ Compensation Division under the Labor Department will want to have you examined by their own medical practitioner before
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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.
