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Wednesday, 9/3/2014

Ending a DH contract gracefully

POSTED BY HappyHongKongers (6 yrs ago)

I'm coming up to 2 years with my 1st helper in HK and would like a change. How should I handle the termination and what formal procedures do I need to take. I hear that I need to give her 1 mth notice and provide an "official" release letter. Is this the case?

What flexibility is there on our helper's "last day" with us. I guess if we find the "right" helper we would like her to start without too big a gap between her existing contract and our new contract (so then we want our current helper to leave ASAP) and at the same time if our current helper finds a new job she may want to leave ASAP.

What's the norm for negotiating these situations?

Are there any regulatory guidelines on flexibility of the contract end date and the amount of notice each party should give?

#1 POSTED BY Moppet (6 yrs ago)

Contract ends on the date stated on the contract, the only way you can change that would be to terminate her early giving her 1 months notice. You can't ask her to stay on longer than the end of her contract without a new contract in place so getting a new helper to start at the same time may be tricky unless you've left yourself plenty of time.

#2 POSTED BY cd (6 yrs ago)

Technically you're not terminating her, she will have finished her contract, and you are choosing not to renew it. As long as she leaves on the last day of her contract you are not obliged to do anything, apart from pay for her ticket to return to her place of abode.

#3 POSTED BY Peggie Wong (6 yrs ago)

Beside the air-ticket home, you have to give her the 2 weeks holiday which she is entitled.

#4 POSTED BY Sue (6 yrs ago)

Hi - I am in the same boat as HappyHongKongers. I understand that when my current helper finishes her contract I provide her with a release letter and she can either finish on the last day of her contract or finish a month early with a month's salary in her hand.

BUT - what about hiring a new one? Can I start the interviewing/paperwork with immigration while my current helper is finishing her contract? And if so, I suppose I would have to start a few months before my current helper is due to finish, since the paperwork alone takes 4-6 weeks, let alone the interviewing process.

#5 POSTED BY cd (6 yrs ago)

She shouldn't be finishing a month early with a months wages, that would indicate that you are terminting her, whereas she is just finishing her contract. We are going through this at the moment, we have chosen not to renew our helpers contract. His contract finishes aug 1st, but we still owe him 2 weeks leave so he should finish wed 15 july, with the full months salary. If there is a shortfall for your new helper starting (we have already put the paperwork in for our new one), then you can apply for an extension on your current helpers contract for 1 month.
In theory you should start interviewing at least 2 -3 months before your helpers contract expires.

#6 POSTED BY beancurd (6 yrs ago)

I think better finish the contract so your helper can find a job and process her new employment without problem. Sometimes, the employer asked the helper to leave one month earlier but the release letter is according to the final date of the contract. Because it is only a matter of negotiation between you and your helper. You can ask your helper that she can also find time to find new job if leave earlier. Better part as friends.

#7 POSTED BY Sue (6 yrs ago)

thanks, that was helpful - for some reason I thought you couldn't put the paperwork in for a new one when you already have the old one finishing their contract

#8 POSTED BY cd (6 yrs ago)

Some people have 2, 3 or more helpers, so there is no reason you can't put paperwork in for a new one whilst you still have a current helper.

#9 POSTED BY crystal88 (6 yrs ago)

Hi CD,

In the same boat too.....just to clarify, for your helper, you mean from July 15, she can leave the house? or go back to Philippines?

I'm also confused with the one way air ticket, do i need to give it to her in cash or ticket? what if she finds another employer, then she doesn't need to go home.

I haven't told her yet as i'm still looking for one, when is the right time to tell her, one month before? though we both know that this is it.

Thanks for the info.

#10 POSTED BY cd (6 yrs ago)

Yes, his annual leave would start on the 15th. Helpers have 2 weeks from when their contracts end to leave HK. His contract actually finishes aug 1, so he could stay in HK until Aug 14th. You can give the 1 way ticket in cash or the ticket, preferably open ended, just make sure you get your helper to sign to say they have received it. The cash equivalent is probably better because if they find a new employer in the mean time they do not have to return home. You should give her a minimum of a months notice.

#11 POSTED BY phia (6 yrs ago)

I just read all this and surprisingly no-one has mentioned severance pay. I just had this experience with my helper - she took the release letter to immigration and then told me that they advised her to go to Labout Department . She then showed me a booklet which states that after 24 months continuous service, she is entitled to two thirds of her last salary x number of years working for us - so in effect the 2-year contract has a built-in severance pay clause. We had our helper for 4 years, and paid her above the minimum wage, so this amounted to quite a lot..... not sure if you all realise this! One month's notice isn't enough - there is severance pay (or long service pay), 2 weeks end of contract leave, and all the paid annual leave, return air ticket and travelling allowance....

#12 POSTED BY Nuri (6 yrs ago)

phia, nobody mentioned severance payment because it's paid after FIVE years.

#13 POSTED BY cd (6 yrs ago)

Yes severance and long service pay are payable after 5 years service.

#14 POSTED BY phia (6 yrs ago)

No Nuri it's not - you just need to check with the labour department - I have just been through this with my domestic helper - she came back with a book from labour department and I have spoken to them - it clearly states that any domestic helper employed for 24 consecutive months is entitled to two thirds of their last month's salary for each year of service (which amounts to the same deal as long service). My helper was told about this and showed me the book and the labour department also sent me the same information YOU MUST PAY SEVERANCE IF YOU EMPLOY FOR 24 MONTHS !! You are MISINFORMED if you think it is only after 5 years. It is the same deal but it is called LONG SERVICE PAYMENT. You need to check it out and be prepared to pay it.

#15 POSTED BY phia (6 yrs ago)

I think you are all in for a surprise if your don't believe me - and depends on whether your domestic helper insists on this payment - but my guess is that they all know what they are entitled to.

#16 POSTED BY Peggie Wong (6 yrs ago)

I think phia is right - only they called it severance pay after 2 years and long service pay as soon as you sign the 3rd year contract which means after 4 years. The term is the same - 2/3 of the monthly wage x years of service. Normally people don't observe the 2 year's bit but if the DH insists & takes you to court, you will lose but nobody bothers as the amount is too small to make a big fuss.

Actually I was not aware of the 2-year bit until lately. Guess a lot of employers and helpers didn't know about this too!! It is stated in the booklet.

#17 POSTED BY Nuri (6 yrs ago)

All these sound weird... I understand if the employers being unaware, but helpers... Which booklet exactly are you talking about? I could not find any reference to what you are talking about neither in the contract nor on the Immigration department web site.

#18 POSTED BY Peggie Wong (6 yrs ago)

I think the booklet is from the labour dept. I haven't seen it but my friends did.

#19 POSTED BY gum (6 yrs ago)

http://www.labour.gov.hk/eng/public/wcp/EOConciseGuide/chapter10.htm
It states on this site that severance payment is only applicable if the "Employment contract of a fixed term expires without being renewed by reason of redundancy*" and the definition of redundancy is also listed as:-

An employee is taken to be dismissed by reason of redundancy if the dismissal is due to the fact that:
1) the employer closes or intends to close his business;
2) the employer has ceased, or intends to cease, the business in the place where the employee was employed; or
3) the requirement of the business for employees to carry out work of a particular kind, or for the employee to carry out work of a particular kind in the place where the employee was employed, ceases or diminishes or is expected to cease or diminish.

Based on the above I don't understand why employers should be liable to severance pay if they do not renew the DH contract after 2 years?

#20 POSTED BY phia (6 yrs ago)

I have just been through this nightmare with my domestic helper. She took her release letter to Immigration, and then went to the Labour Department who gave her the booklet. Even though I am an expat, by employing her she has employee rights - so if I decided that due to personal circumstance (my re-location, my financial reasons etc) I don't wish to re-new her contract, she is technically 'redundant' and entitled to this severance payment. I know because I spoke to the Labour Department - and my local colleagues all concur that it is the normal practice. Being an expat doesn't make it a special case. So because I 'closed my business' with her, she indicated that she was due severance payment. You cannot be casual about this! I really wasn't aware of it - had I known, I wouldn't have given her a pay increase above the minimum wage. I was paying her $4,500 a month, two-thirds of which comes to $3,000, multiplied by the number of years (4) so the extra amount due was $12,000. I was stunned - I realised how important it is to get your helper to sign for every wage you give her, state the paid annual leave etc - because if you get a helper like mine, she will make sure she gets all her entitlements. I wouldn't mind, but really we had been very flexible about her work and duties. So my advice is - be prepared!

#21 POSTED BY phia (6 yrs ago)

Additionally, some people have warned me that quite often domestic helpers do go to court to delay having to return to their home country - as long as they are appealing they can remain here ...... I think that the only way to terminate without the liability of severance is due to unsatisfactory performance. My advice is to get that booklet pronto ! www.labour.gov.hk Tel: 2503 3377 You can telephone before 8 am - also you can leave a message and they will call you back. There is another booklet called "Practical Guide for Employment of Foreign Domestic Helpers". Suggest enquire about statutory entitlements upon termination of employment (Employment Ordinance) Tel 2717 1771 (Kwun Tong district)

#22 POSTED BY bloomfieldtj (3 yrs ago)

Interesting post. I am considering terminating my helper's contract in May/June this year, purely because we won't be needing a live-in anymore after my daughter most likely goes to boarding school - I have no problem with the standard of her work or anything like that, I'm quite happy with her. It's just a change in our family circumstances that will necessitate this change.

At termination, she will have been with us for about only 10 months (her contract started early August), so am I correct in my assumption that I won't have to pay severance pay, just a month's notice plus flight back to the Philippines?

Many thanks.

#23 POSTED BY axptguy38 (3 yrs ago)

No need for severance as you say.

However you owe door-to-door transportation from your home to yours, not just the flight. This should include a food allowance if the journey is long.

#24 POSTED BY Susie1 (3 yrs ago)

If she really is a good helper you would recommend, when she is due to finish her contract with you, offer to meet any future employers, it would help her chances of getting ongoing work.

#25 POSTED BY Ed (3 yrs ago)

http://hongkong.asiaxpat.com/helpers/register.asp


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