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Termination of Pregnant Helpers

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ORIGINAL POST
Posted by smoran 17 yrs ago
Here's one for you!

We recently served our maid notice of termination (1 months notice starting 1 Dec 07) and took the signed letter to the Immigration Dept.

Our maid has now told us she's pregnant and the Immigration Dept say we now have to withdraw our letter as the termination starts from her last day and not from the day we told her of her termination.

Does anyone out there know where we stand legally?
 
 
ED's NOTE - you can find some information on this on the Labour Department website (or give them a call) 

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COMMENTS
aemom 17 yrs ago
From: http://www.labour.gov.hk/eng/public/wcp/FDHguide.pdf


Q6.3 Can an employer dismiss a pregnant helper?

A No. Except in cases of summary dismissal due to the helper’s serious

misconduct, an employer is prohibited from dismissing a pregnant helper

from the date on which she is confirmed pregnant by a medical certificate

to the date on which she is due to return to work on the expiry of her

maternity leave.



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cd 17 yrs ago
But I read it that smoran gave the termination letter before they were told of the pregnancy, so surely they were not firing a pregnant helper?

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mrsl 17 yrs ago
I am all in favour of protecting the rights of pregnant workers, but this sounds ridiculous! You terminated her for your own reasons, without knowing that she was pregnant, so why should you now have to rehire her? Have you spoken to someone at immigration about this or is your helper just relaying 'information' from them? This is entirely different to sacking someone because they were pregnant.

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kittycat2 17 yrs ago
This is correct - if you are fired without having told your employer that you are pregnant you can tell them then, and they can't fire you expect for serious misconduct, so must keep you on. That's the law for all employees in HK. Remember you probably wouldn't tell your employer as soon as you knew you were pregnant, but would wait two or three months - same for helpers.

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mum of 2 17 yrs ago
IslandHopper, I agree with you, we do have a duty to ourselves and our employees to know our obligations. My husband and I read the rules repeatedly before taking on our first helper, but this one still comes as a shock to me. I would always have assumed that this rule was there to protect pregnant helpers (and other employees) from termination by unscrupulous employers due to the fact that employing a pregnant woman is 'inconvenient'. smoran terminated her helper for whatever reasons (presumably the helper's unsuitability or poor performance), she had no knowledge of her helper's pregnancy.


Kittycat2, most people do not tell their employers that they are pregnant until the 3 month mark or so. Equally, they would not expect to be protected by employment legislation preventing dismissal due to pregnancy during this time. You cannot be fired for being pregnant if your employer has no knowledge of your pregnancy.

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hkwatcher 17 yrs ago
I think this is a case for clarification fro the HK Immigration Dept.

We have found the officers to be most helpful, did she (your helper) tell you this or do it come from them so to speak? Your knowledge of the PG came AFTER the one month notice and therefore should not be considered within the exact same guidleines of the law. (my opinion)

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Elodie 17 yrs ago
Island hopper is right.

You may have been unlucky there, but if your employee is pregnant, you cannot terminate her contract, it's the law.

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hkwatcher 17 yrs ago
Read the post again......

We served our maid notice of termination (1 month) and took the letter to HKIMD.

When did they find out about the PG????? This is the million dollar question!

It seems to me to be a grey area.




We recently served our maid notice of termination (1 months notice starting 1 Dec 07) and took the signed letter to the Immigration Dept.

Our maid has now told us she's pregnant and the Immigration Dept say we now have to withdraw our letter as the termination starts from her last day and not from the day we told her of her termination.

Does anyone out there know where we stand legally?

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cd 17 yrs ago
To smoran, don't want to sound too cynical but has she actually given you proof that she is pregnant? maybe its a ploy to keep her job.

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mrsl 17 yrs ago
So, if the medical certificate was dated, let's say a day after smoran gave notice of temination, even if the conception pre-dated the termination date, does he/she still have to re-employ the helper? ie. is it the date of the doctor's letter that is important, or the gestation?

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mborderform 17 yrs ago
smoran,


It is not clear to me what Imm dept mean by "termination start[ing] from her last day". What does it mean and how does this relate to the notice period and to her being pregnant? What is her "last day" in these circumstances?


Do you have a medical certificate and, if so, does the date on the cert. precede the date of your notice (1 Dec)? IF not (ie no cert or if date of cert post-dates notice of termination), you are within the law to terminate the helper at the end of the notice period. You should return to Imm Dept and explain this to them.


Note that the prohibition on dismissal runs from the date of the certificate confirming the pregnancy NOT the start of the pregancy (so the helper could have been pregnant at the time the notice was served but if the pregnancy was confirmed by a doctor after 1 dec the notice is still valid.)


If, however, the medical certificate is dated before 1 Dec you cannot dismiss the helper even if you did not know about the pregnancy at the time you gave her the notice. In this situation i would ask the helper to undergo another pregnancy test (with your or another reputable doctor) to confirm that she is still pregnant. If yes, you need to comply with the rules relating to pregnancy - if not you could presumably proceed with the termination in compliance with your original notice but I would check with Immigration to confirm this.


Good luck!

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hkwatcher 17 yrs ago
THANK YOU mrsl! This is the crux of the matter and this is why I think that another look from this case is in order.


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mrsl 17 yrs ago
IslandHopper, the link says:


'An employer is prohibited from dismissing a pregnant employee from the date on which she is confirmed pregnant by a medical certificate to the date on which she is due to return to work upon the expiry of her maternity leave if:



- the employee has been employed under a continuous contract , and

- she has served a notice of pregnancy to her employer. '


This implies that the date of the medical certificate is what counts, not the date of conception.


It goes on to say;


'If a pregnant employee is dismissed by her employer before she has served a notice of pregnancy, then she may serve such notice immediately after being informed of her dismissal. Under such circumstances, her employer must withdraw the dismissal or the notice of dismissal.'


So if smoran's helper waited a few days before informing smoran of her pregnancy, does that still count as serving notice of her pregnancy 'immediately after being informed of her dismissal'. Surely, if she did not say anything there and then, it would not count as immediate notice?


Then again, this is just a common sense interpretation and a 'common sense interpretation' of the overall law would allow you to terminate a pregnant employee for legitimate reasons if you (or possibly even she) had no knowledge of her pregnancy.



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mborderform 17 yrs ago
Island Hopper,


The exemption period runs from the date of the medical cert NOT the start of the pregnancy (gestation).


I also don't see why asking a helper to see another doctor to verify the pregnancy (at the employer's cost) is "playing with fire". It won't change the date of the first cert but will confirm the existence (or not) of the pregnancy.


It is common in personal injuries cases for the plaintiff to be examined by the defendant's doctor (at the defendant's cost) to verify the injury claimed - why not here? I don't know what you'd do if the helper refused though!

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mborderform 17 yrs ago
Island Hopper,


I don't want to hi-jack the thread so this is my last comment on this (very interesting) question but, to put it very simply, you CAN fire a pregnant helper if you do it before the commencement of the relevant period. The commencement date is the date of the medical certificate. And, as MrsL points out if the helper does not immediately provide notice of pregnancy, the notice of termination stands.


It is not a question of fairness it is a question of applying the guideline to the case. It appears to me that the law rightfully protects pregnant women from being terminated by dating from the medical cert because, as many posters have pointed out, a helper who is terminated without this is not being terminated for being pregnant.


We both know that there are medical certificates and medical certificates. There may be valid questions about the authenticity of the document in question or the veracity of the matter. I suggested "asking" the helper to undergo another test - not coersing or pressing her to do so. Perhaps the safer course would be to first ask immigration what happens in a case where there is doubt about the veracity of the document or the pregnancy.


We don't know that there was "obviously" a certificate which is why i went through the various possibilities in my first comment. smoran says that the helper later "told" them that she was pregnant.


It is also possible that Imm made a mistake by connecting "termination" with "pregnancy" but without considering whether there had been a medical cert or immediate notice of pregnancy following termination - ie whether the correct procedure had been followed. Mistakes can happen and may need to be followed up.


I suppose my real point is that smoran needs to investigate the matter further and not accept any "statement of fact" - yours, mine, the helper's or immigration's on the face of it adn to go back to IMM as many times as necessary to verify the statment of the first officer.

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Nuri 17 yrs ago
This is an interesting thread. I feel for the helper and the employer. However, it made me think that I can see why some employers prefer to terminate their helpers without a 1-month notice, to pay her in lieu for everything and to say ‘goodbye’ on the same day.

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