Reinstatement or re-engagement of an employee who has been unreasonably and unlawfully dismissed
From 19 October 2018, if an employee has been unreasonably and unlawfully dismissed he/she may make a claim for reinstatement or re-engagement to the Labour Tribunal.
An unreasonable and unlawful dismissal may arise where an employee is dismissed without a valid reason (i.e. for a reason other than the conduct of the employee; the employee’s capability/qualification for performing the job; the employee’s redundancy or other genuine operational requirements of the business; the employer’s compliance with legal requirements; or for any other reason of substance). A dismissal will be regarded as unlawful if an employee is dismissed in circumstances which contravene statutory provisions relating to: pregnancy and maternity leave; paid sick leave; after a work-related injury and before determination/settlement and/or payment of compensation under the Employees' Compensation Ordinance; or by reason of the employee exercising trade union rights or giving evidence for the enforcement of relevant labour legislation.
Where an employee has been found to have been unreasonable and unlawfully dismissed, the Labour Tribunal may make an order for reinstatement or re-engagement without the need to secure the employer’s agreement.
If the employer fails or refuses to reinstate or re-engage the employee as required by the order, the employer will be liable to pay a further sum, amounting to three times the employee’s average monthly wages (subject to a cap of HKD72,500). It is an offence if the employer fails to pay this sum to the employee without a reasonable excuse.