Labour Tribunal has new power to order re-instatement or re-engagement of employees without employer’s agreement in cases of unlawful and unreasonable termination

The Employment (Amendment) (No. 2) Ordinance 2018 was gazetted on 25 May 2018 and will come into force on a day to be appointed by the Secretary for Labour and Welfare. The main objective of this amendment is that, in the case of unlawful and unreasonable termination (e.g. termination of a pregnant employee, employee on paid sick leave, employee participating in trade union activities or an employee who has an outstanding employees’ compensation claim against the employer), an order of re-instatement or re-engagement may be made in the absence of an employer’s agreement if the Labour Tribunal considers it appropriate and reasonably practicable. Before making the relevant order of re-instatement or re-engagement, the Labour Tribunal must allow the employer and the employee to present their cases in respect of making the order and consider all relevant circumstances.

Any order of re-instatement or re-engagement made by the Labour Tribunal will also contain a term to the effect that a failure to re-instate or re-engage the employee by a specific date will result in a liability to pay the employee a further sum set at three times the employee's average monthly wages, subject to a maximum of HK$72,500.

The full text of the gazette can be accessed through this link: Employment (Amendment) (No. 2)Ordinance 2018—Ordinance No. 21 of 2018.