Posted by
kokokat
16 yrs ago
In my opinon, we have been really good to our helper and have gotten along really well.
Unfortunately a few months ago my husband lost his job (which we expected as early as December) what was unexpected, was how hard it was due to the crisis was not being able to find another job. I told my helper this and she was aware then that things for us and our ability to keep her employed with us was uncertain. I suggested she start looking around for new employment then and I asked my friends also. I told her that it is better she finds a good family and leaves now than wait until we have to leave and have to make do with the first offer.
Funds running low and no job prospects in sight, we were faced with a situation to pay the helper levy and leave in one month or terminate our helper now and not have to pay the $2400. I only found this out one and a half weeks ago. Because neither of us have a job we cant sign a new contract and avoid the levy.
Explained all of this to our helper. This meaning that the offical notice period we gave her is one and a half weeks. Because she knew the situation though and had accompanied some friends to thier interviews already was able (thankfully) to find a nice employer. If anything this employer is better off than us and has made promises to pay for things we wouldnt have been able to afford.
The problem was when it came to paid her salary. She also wanted a months pay in lieu of notice! And I refused, angry that we have given her by way of bonuses, holidays, gifts in the last year much more than one months pay. She has a new employer starting the day following our termination and I made it clear to her, we would pay for any time she didnt have a job.
Now I am starting to question myself, I am being fair by not paying the months pay in lieu of notice?
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I would suggest contacting the Labour Department to check what your rights and her rights are. If it works out that you are not legally obligated to pay, then you are free to make the choice. therefore if you can't afford it, and your helper knew this, you should not feel guilty at all.
Just make sure you have your facts right before making the decision.
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Maybe but $4000 is still a lot of money to us, with or without a job.
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It's 30 days notice or immediate and a month in lieu. So a week and a half does not constitute either, so yes your obligation is to pay the month from the day of notice by law.
If the levy was an issue you could have redone your helpers contract last year so you were levy free for a few years. However "only" finding out is no excuse. As an employer it is up to you to be on top of these things.
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xx07
16 yrs ago
Much as I empathise with u, u have to give her 30 days written notice period or wages in lieu. Else she may take u to labor and try to obtain it that way.
My situation is not good either. I finally terminated by helper Fe due to repeated mis-behaviour (which i have evidence of) after 4 yrs 11 months after giving her a verbal warning 2 months ago, gave her all her dues (notice period, ticket, travel allowance etc) and in addition a one off lumpsum payment of a few thousand just as an extra.
However she is now going to go to labour and make a complaint case because as per philippines consulate i should still pay her long service payment as it is 'nearly 5 yrs' which is actually due only if she had worked with me for 'no less than 5 years' as per the hk labor law. I am annoyed at how the law can be distorted to suit the helper's interests and 'nearly 5 yrs' and 'not less than 5 yrs' mixed up and interpreted the same. Infact, in the event that a helper has summary dismissal due to misconduct, the employer doesn't even have to pay any notice related dues as per labor. I still paid her all her dues and lots more extra besides all the extras - bonus, tickets etc in the past
There is no control and the helpers can just go and make a false case against u to buy more time in hk which u are better off settling unless u want to spend the time in attending all the proceedings .. So if u owe her something, u prob have to give it unless she explicitly agrees .. In my case I will have to give her something I dont even owe her because their consulate is on their side and we employers have no fairness in such cases ..
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XX07 thanks for your post. Makes my issue seem small. I realise now that my issue is not paying the money but bringing someone, a stranger into your home, interacting with your kids and becoming like part of the family and remembering that they are only an employee, ready to take advantage and scheme whenever they can. The sad thing was I really got to like her. I know we are lucky there are and a hundred cases much much worse then mine.
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Please check Labour Department and do what the law expected you to do.
I have a query though, if your maid has got a new employer and will start work with them soon, so she is breaking her contract with you, according to labour law, she should pay u a month as compensation for the 1-month notice period as stipulated by labour law, isn't it? Why is it that everybody thinks that the employer is always obligated to pay???
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Because the employer gave notice! The fact an employee has a new employer doesn't mean a thing, the employer gave notice and they have a legal obligation to comply with labour law. This applies across the board, not just for FDH.
Telling her that you are leaving HK will not help either, you are still subject to your obligations in law. Again this is across the board.
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I don't think you can accuse your helper of being greedy because she is insisting on receiving salary she is entitled to. I would do the same if I was made redundant, even if my employer helped me find a new job and I expect your husband collected all the monies he was entilted when he was made redundant.
You say that $4,000 means a lot to you. I sympathize, but think how much it means to her.
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He didnt receive any redundancy- nothing at all. To a company I think it is different, working for an individual should be a different case. .We asked to her stay and serve the 4 weeks notice period, but she didnt want to because she found a good employer and she wanted to start working with them straight away. Fair enough, so we released her. Then she asks for a termination payment.
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Firstly when you took on an employee you then subject yourself to HK labour law. Why should it working for a company or an individual be different rules? Employees are employees. Those who are one man band companies are still subject to same rules. That's life......
However in first post you say "Explained all of this to our helper. This meaning that the offical notice period we gave her is one and a half weeks. Because she knew the situation though and had accompanied some friends to their interviews already was able (thankfully) to find a nice employer." Then" The problem was when it came to paid her salary. She also wanted a months pay in lieu of notice!"
Now you say "We asked to her stay and serve the 4 weeks notice period, but she didnt want to because she found a good employer and she wanted to start working with them straight away."
So which one is correct? Because if it's the first one then she is in the right and if it's the second one then she is in the wrong and must work the term. Although if levy comes up in the meantime you have to pay it of course...............
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mdap
16 yrs ago
You have to pay her! It really makes me laugh that anyone who has been an expat here and desires to convenience and prestige of having a maid all of a sudden cries poverty when you lose your job! The maid is more than a trinket to adorn your lifestyle! She also has to support her family and relies on her salary exactly the same way you relied on yours. You said yourself you knew your husband was likely to be made redundant, so did you refuse his severance package because it was already mentioned! HK$4,000 is a meal to you and a life line to your maid ... Anyway regardless of your pathetic approach you are legally obliged to pay her one month in lieu . In the future, clean your own underwear and wash your own floors !
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cd
16 yrs ago
If you asked her to work the 4 weeks notice and she chooses not to, then surely its her fault if she doesn't get the months money. Normally you would give a months notice or a months wages in lieu for them to leave immediately, but surely if you gave her 1 1/2 weeks notice and agreed to the leaving date, then surely you only need to give her just under 3 weeks wages.
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mdap,
It makes you laugh(?) Clearly you have never had a helper yourself! Believe me there is nothing prestigious( I think you mean) about having a helper. A trinket! Please, if you have no idea what you are talking about dont enter a site about domestic helpers!
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Greedy helper? or Greedy employer?
There are plenty of laws surrounding this issue so just figure out exactly what applies. I have never done the research myself but it is my understanding that it is either one month notice or one month in lieu...no proration. If you only gave her 1.5 weeks then tough luck for you...pay the woman.
So...assuming the law is on her side...who is greedy here? A poor woman who leaves her home/family and everything she knows or cares about to go work in a foreign land as a full time live in servant wanting to collect what little amount the law entitles her to? Or..the self absorbed over paid Xpat who makes plenty of money (or used to but didn't save anything) who is now trying to protect themselves and screw the aforementioned live in servant out of what is legally owed to her?
I work as an Xpat...make decent money...and may get laid off soon. As part of my compensation package I negotiated for 3 months in lieu of notice. I recently heard rumour that my employer (a VERY wealthy man....like top 100 in the world type of wealthy) was seeking to escape the 3 month liability to persons he plans to layoff. I thought to myself...as I think most of us working folks would...why would someone with that much money try to screw us average working folks?
Now think about your helper...she probably thinks you guys are totally wealthy...from her background she cannot even imagine how much money you have. Look around your apartment and think about how many things you spent 4k+ on...probably lot's of them right? Matter of fact...4k really isn't that big of a deal to you (at least it wasn't before you got fired and didn't save enough for the rainy day's). In your helpers mind she is just a poor girl trying to collect what is legally owed to her.
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I am confused about the $2400. As of last Aug there is no more levy.
Under the law you are required to give her the equivilent of an air ticket home and either one month notice or the salary equivilent. The contraact states this really clearly and as such the Labour Dept will uphold the contract.
BTW, yuhana they are not a neutral body.....
You are out whatever the salary plus the airfare, but no more levy.
There seems to be a wide range of opinions on whether or not a DH "deserrves" to be paid wages that are set out clearly when you signed the 4 copies of the green contract. Remember, you chose to sign, you were not forced. She (DH) chose to sign and she was not forced. You both need to honor the legal terms of the contract and stop making it a personal character assasination. It is a legal and binding document just like any other.
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cd
16 yrs ago
But wouldn't it make a difference if the employer wanted her to work the months notice, and the employee chooses not to. I suppose the OP could stop her leaving and tell her that her leaving date is 4 weeks after she was given notice.
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I am confused how your helper can have a new job starting BEFORE she has officially worked out a formal notice period with you and without submitting a termination letter from you to immigration with her final working date specified.
I recently had a panic to employ a new helper after my existing one gave me the statutory 4 weeks notice.
I replaced her with a helper who was being terminated for employer financial reason as I had been advised that this was one of the situations where she would be able to stay in HK while awaiting her new visa.
The termination letter from her previous employer had to clearly state the reason for termination and final day of notice.
After many forms and interviews with immigration she did obtain permission to stay in HK. HOWEVER - immigration refused to provide a special form confirming this (required by the Phil consulate before they would notarise her new contract) until the FINAL day of her notice as specified on her termination letter.
Your situation appears to be similar. So - I am confused how your helper has managed to walk into another job without presenting a termination letter and proper termination date from yourself to immigration.
If she is starting work legally then this means she has managed to get a new visa and implies that she has already worked out her full notice period - i.e. not entitled to any further payments from you.
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Thanks everyone for posting your comments.
Though, I do take issue with those comments that suggest anyone would think that having a helper is some type of trinket.
I posted the thread so I could get some clarification on the issue because I had very mixed feelings as what the right thing to do was. I am not a mean employer, my helper consistently told be she loved working for me- though I cant be sure she is telling the truth there. I have my bad days too.
I have tracked her down and paid the termination payment. I agree it is wrong to confuse our friendship with a employer/employee relationship. Of course the money is important to her and she has her own reasons for not wanting to work an extra 2 weeks with us.
My lesson is to do everything by the book and be more guarded next time (if there is a next time)!
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Dadda,
I just read your comment now! Couldnt have put it better myself!!!
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HKwatcher, I believe OLD contracts (ones signed before the levy was suspended) are still subject to the quarterly payments. And if the helper knows that the next installment is due soon, then Beancurd's suggestion to tell her to continue to stay on for longer may not work. Kokokat, does your helper know about the upcoming levy? If not, you could try the bluff and see if she will back down.
Personally, I don't see this issue as being one about whose situation is more or less fortunate, who has more or less money etc. I think it's more about mutual trust and how you gave your helper the benefit of the doubt and she has used it to her advantage and refused to return the favour. If I were in your situation, I would probably feel betrayed, especially if I had trusted her and we had a good working relationship (as it seems to be your case.)
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I am so fully agreed with dadda's reply based on my own personal experience. Thank God I no longer need to have one. Now i just get local part-time help and it makes my life easier.
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Cara,He didnt receive any compensation as I mentioned before. Anyway I agree with housed it isnt about the money issue.
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