Posted by
qvong
17 yrs ago
Okay..please bear with me as this is a long story.
My helpers' contract was up for renewal in mid August. Knowing that my family and I were leaving Hong Kong for the summer holiday after my kids got out of school (late June) we prepared all necessary paperwork for her to handle going to immigration and the consulate etc. to renew her contract and visa. On Aug. 20th we returned to HK, she now has a new visa.
When I get back she tells me that when we were gone she got really sick, went to the doctor and the doctor told her she had food poisoning, there were a few days she wasn't at my house consecutively because she didn't feel so well(as she was to be here to empty the dehumidifiers, collect mail etc) Note: My husband was here until mid July. She proceeds to tell me that in the end of June she had her period, and then end of July she had her period but off and on she was bleeding for the whole month. So she went to the doctor beginning of Aug. and the doctor had told her she was pregnant!! On Aug. 14th she went back to the doctor and had an ultrasound done and the the doctor told her she is about 13 weeks pregnant.
Here's my thing...If you do the math she was obviously pregnant before I even left for my trip. She tells me she didn't know she was pregnant because she was still having her period, although she had all symptoms of being pregnant (i.e. mronign sickness, nausea, fatigue). She even told me when she was cleaning she would feel like she wanted to vomit!! To me I feel I have been deceived because she knew her contract was coming up for renewal. She didn't tell me, nor my husband who was here, any of this whatsoever..She proceeded to tell us after my family and I got back and she has her new visa in her hand.
I know that I cannot fire her in terms of a pregnancy but can I do so for being misled by her or was it my fault I didn't make her take a pregnancy test before I resigned her contract?
And I know I can't fire her when she is pregnant but obviously we hired her to be a DH and if she cannot perform her job I obviously want someone that can do the job I am paying for.
Can someone please give me some legally ethical advice please.
Up to this point she has been very reliable. She is married and her husband is here in HK as well but please understand she just started a new 2 years with us in what I believe is false. If it was towards the end of her contract that would be fine but this is the beginning of a new contract.
PLEASE HELP!!
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is there an immigration lawyer or something like that you can consult?
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I agree with Island Dweller. I am currently pregnant and did not tell my employer until I was just over 4 months pregnant, simply because I didn't have to and it was my business. I certainly did not give them details of my cycle nor prior notification of my plan to fall pregnant. I understand you feel deceived but I don't think there is anything you can do and if there was, would you want to? Do you feel pregnancy should be a reason to teminate employment? There are even adds on the TV making it clear that it is not.
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If you are working in a office and get pregnant then its fine to work until you are 8 months, but gvong's concern is different, she is the helper and you expect helper to work for you fr household chores, do you want to see your helper with a big belly cleaning your window...cooking infront of hot stove with a big belly. And she have to stay with them for 24 hours. I dont know how close you are with your helper, but some people they manage to have a pregnant helper with them.
If you are willing to pay 3 months paid maternity leave for her then I think should not be a problem, if not and as what you said fell deceived, then better consult a lawyer who will advise you what to do, try emailing labour as well, bec if you have proof that she is pregnant before you sign the new contract that then should no problem to fire her, you just need to explain your side as well, as everyone have their own rights and so do you to say no to a pregnant helper, especially if you have a small baby she needs to take care of as well. How can you expect a pregnant helper take care of your baby and at the same time clean and cook, when I was pregnant I almost can't work and I think so do her.
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ness
17 yrs ago
This is simply one of the things that you have to factor in when employing a helper. It can and does happen quite often.
The really difficult part of it is that because part time affordable help to replace her while she is off on maternity leave is so difficult it leaves families where both parents work in a dilema of no child care. The cleaning can be done by an agency or yourself after hours for the period where she is away/not well but the legal affordable after school or all day care of children/eldery or pets is almost impossible to find in HK.
If the immigration department made it possible to employ someone on a short contract specifically to cover maternity leave it would alleviate many of the employers issues and people wouldn't be so desperate to find a way to get out of the contract. Good helpers would also be able to deliver their babies and return to work after a suitable time at home with employers they had a good relationship with.
In the regular world you can hire a temp or someone on a maternity leave contract to cover a pregnant or long term sick employee. Just my two cents worth but this is why I believe it becomes such a big issue for families. It would also possibly be an advantage to helpers who are between contracts and would like to stay on and find a new employer.
The other families I know of have usually entered into buying them out of the contract (for up to $50K) and it did get nasty sometimes. She is not entitled to bring the baby into the house either, so when she delivers and her maternity leave is over (is she was entitled to it) the first day she does not turn up to work is the day that she terminates her contract. Fraught with guilt about being uncaring if you go this route but if she is reasonable and you discuss and plan for all this realistically you may be able to come to some sensible arrangements with her.
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I know what you mean Island Dweller, but we are talking here about a helper who lied to her employer about being pregnant so that she can have her new visa.
I know the law, and I know everyone have their own rights, which is called human right. Anyway I am not here to agree or not agree with anyone else, I posted my message for gvong because I myself is an employer and I know what she feels with the situation she is now.
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Quote: The rules say that she is not entitled to maternity leave if she delivers the baby before 40 weeks of the contract. So this is the case for her and she is not actually entitled to the maternity leave. Speak to immigration to get crystal clear confirmation of this.
Actually untrue. This is a renewal not a brand new contract so maternity still has to be paid.
I have known many people who are pregnant and have still taken on jobs without telling their prospective employer. Actually she does not have to tell you, there is no written rule that she does. But everyone seems to think it should be different for FDH!
Now whether working in an office or working in the home the rules are there regardless of whether people believe it is "different". It's not your call, the FDH's are still entitled to live a life and yes, believe it or not, even get pregnant!
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bbvv
17 yrs ago
Just out of interest, is the employer responsible for providing for the DH's baby when born? That would also add to the finance.
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qvong
17 yrs ago
Okay..thanks for everyones' input. But lets not start and all out accusation war on this forum.
You bring the helper into your home and all I was looking for is some honesty and respect and not deception. DH are different in terms they sign bi-annual contracts with their employers. If this was a corporate gig you simply hire them and they work until whenever they decide they want to resign or when you want to let them go, as a company you are also covered by insurance. It's the whole I was renewing her contract and she new and now everything has to come out of my pockets for the sake of her not being honest with me.....I have no intentions to fire her. I will see her through but I just felt as an employer, I have brought her in my household, she's part of my family on a personal level and she pulls the wool over my eyes in this sense. Oh well...guess I will not have another DH after I am done with this one.
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qvong
17 yrs ago
Island Dweller....Now if the President of my company was to bring me into his household and house me as I am working for him then I guess I would be on a more "personal" level with him right.
I know what the law is in HK on FDH. And like her we are all here working our butts off to support our family and working to try to get ahead in our lives. But the relationship between a DH and their employee is totally different from an Employee and their Employer that is working for a corporation and that is a fact.
Needless to say, it's a catch 22. FDH want a good employer to treat them nice and not work them to death, treat them like helpers and not slaves and pay them well as I have done so in this case. In return a little honesty wouldn't have hurt. So next time I bring in a DH and treat them strictly as an employee, give no compromise and do everything by the book then you'll have another "Island Dweller" telling me I am heartless and treating her like a slave.
The cycle never ends...BTW..I think people should just be grateful they have a job despite the fact they don't believe it's anything special.
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dezz
17 yrs ago
why dont you talk to her,and ask her plan now that she is pregnant,maybe she just want to work for you for few months and go home.and tell also what you want to do,now that she is pregnant.just an idea.hope evrything will be ok.
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qvong
17 yrs ago
Great advice dezz...I have done so and we are working on that now so lets hope for the best.
Island Dweller I was a Director at my company and rest assure, not only did I pay my employees for performing their jobs but I was grateful to those that did a wonderful job for me. The people that worked for me loved working for me...That to me is a feeling of gratefulness. Guess you come from a different cut throat business.
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good luck gvong, my friend's helper just had a bb, just is a very difficult situation i can imigine. but it will work out for u keep us posted.
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This is every helper's employer's nightmare, but it's hard to fault the helper in this situation. If she were honest, odds are that she wouldn't have a job right now, because most of us don't have the financial resources to provide maternity benefits (essentially, by hiring a second helper to fill in the period when the first helper is not able to perform her duties).
The employer is not helpless though. The employer can request a health check up before signing a contract, and many do. Did you think to ask for a health screening before renewing the contract? Or, even asking what your helper's plans were with regard to having a family? If my helper was married and her husband also worked in Hong Kong (well actually, as harsh as this sounds, I would never hire a helper who was young, married and living in the same city as her husband for precisely the reason why this thread was started), I would have asked if she were pregnant (as invasive as this sounds) or have her complete a health check up (probably the latter).
gvong, once you get over the sense of betrayal, then you can decide whether to be a compassionate employer, a mean one, or somewhere in the middle. You probably have more control of the situation than you think.
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Gvong - im so sorry this happened as i can understand why this is such a pain.
But the only one you can blame now is really you. You should have done the body check before you renew a contract..if you ask me.
Put yourself in her shoe - would she really tell you she's preggy when she knows that a) you would not renew the contract b) no one is paying for her hospital.
Would anyone this dumb to tell the empolyer this? Think about it.
But honestly, this is really a pain. Means you may have to take care of her and not the other way around.
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Puti
17 yrs ago
Wotever - love what you are saying - but you sound so abrasive when you say it.
This is good advice though - and sorry to have been learned at Gvongs expense. I would not of thought of a full medical check up at contract renewal, but I will certainly do one when that day comes.
A good honest chat is needed now. We have a friend with a helper who wished to get pregnant. She did tell this to her employer (employer has no children, 5 dogs) and they made some lovely plans. She is Sri Lankan, and we are Island Dwellers so the rules are a little more 'flexible'.
The upshot was, the baby stays on the island cared for by an older Sri Lankan who has permanent residency. She makes her money caring for Helper kids. As the pregnancy progressed, her husband came over and did those chores not suitable for her - cleaning windows, cleaning the stove etc. He would give the bathrooms a huge scrub and move all the furniture and wash the floors to sparkling once a week, this meant her duties were considerably lightened. I think he did most of this on a Sunday (as he worked) and I know this is family day, but they usually ate a sunday brunch out, and it was easy to give him a couple to three hours to do the heavy stuff.
I can't remember the arrangements during the maternity leave, but i do know they have the most loyal and willing helper ever and are known as "good employers"
They managed a difficult request into a win/win situation. Have a good chat to your employer, ask her how she would like this to go, does she have any suggestions and plans - she may surprise.
Good luck, keep us posted, and congratualtions to your helper
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qvong
17 yrs ago
wotever..you are right. I have no one to blame but myself. I gave her the benefit of the doubt by not doing a medical examination prior to renewal (that will never happen again) because up to this point she has always been honest and reliable. She had told me many of times that her husband was against having a child because he's over 50 and already has a teenage son back home and that she had no plans of having a baby. Stupid me for believing her but she's not that young either so I took it for her word.
I'm glad others can take something out of my unfortunate mishap..
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Is that under the law that the empolyers have to pay for the FDH's hosptial bill?
Is the health insurance covering that?
I mean if my staffs in the office getting preggy i don't have to pay for their bills..why FDH is different? I think it's really unfair if this is the law.
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my question - hijaking a bit here - follow on from wotever - do DHs qualify for any state healthcare? I mean, do emplyers have to pay every time for them to go and see a doctor etc? And yes - would like to know as well what happens if they get pregnant? who pays?
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This is from the DOL website. I saw it when I was looking for information on dental care for DH.
Chapter 6: Maternity Protection
For both employer and helper
Q6.1 Under what circumstances is a helper entitled to paid maternity leave?
A A helper is eligible for 10 weeks’ paid maternity leave if-
�� she has been employed for not less than 40 weeks immediately before the
commencement of scheduled maternity leave;
�� she has given notice of pregnancy confirmed by a medical certificate to
her employer; and
�� she has produced a medical certificate specifying the expected date of
confinement if so required by the employer.
Q6.2 What is the rate of maternity leave pay? When should it be paid?
A The daily rate of maternity leave pay is equal to four-fifths of the average
daily wages* of the helper . It should be paid on the normal pay day of the
helper.
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.
�� An employer who contravenes the provision is liable to prosecution and,
on conviction, a fine of HK$100,000. He/She is also required to pay the
helper:
�� wages in lieu of notice;
�� a further sum equivalent to one month’s wages as compensation*;
and
�� 10 weeks’ maternity leave pay if, but for the dismissal, she would
have been entitled to such payment.
�� The helper may also claim remedies for unreasonable and unlawful
dismissal under the part of Employment Protection of the Employment
Ordinance (see Chapter 9).
*For details of the calculation of maternity leave pay and compensation, please refer to
"A Concise Guide to the Employment Ordinance". Copies of the Guide can be obtained
at the branch offices of the Labour Relations Division or downloaded from the
homepage of the Labour Department.
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Thanks HK watcher - but still go back to my question: Do we empolyers have to pay for pregnant helpers all medical expenses?? Like, ALL?
I can understand that we can't dismiss her, but do we need to pay for her?? On top of the salary we are paying her?
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In my opinion is that HK goverment doesnt wanna give good/free/cheap pregnancy service to the DHs and they want the empolyers to handle it themselves.
You know how HK goverment is treating DHs like dirts somtimes? They probably just don't wanna get involved. I don't think it's part of the healthcare responsiblities. I pay for my empolyees (in the office)'s health insurance in/outside of the office during wkdays, doesn't mean that i have to take care of them when they are pregnant. I think it's total BS.
Sorry for my lanugage i just think it's very unfair. What if the DH wants to have 3 kids in 2 yrs? We have to pay it all???? HK laws - honestly.
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Who pays? I am not sure but I think it should be us. What my friends and friends of friends did was they go and visit a private GP ( there is two Filipinas GP in HK)for about HK$250.00 then they will be given a referal to a public hospital/family clinic for pre-natals not too sure if this is for free but if not I think the fee is somewhere between 36-100 ( but I could be wrong, will know more when my co-worker will have her pre-natal next week). Delivery is free but they have to pay for the room etc that could accumulate between 2-5k. According to my co-workers' friend who just had a baby, my co-worker is better off having the baby back home or she will find herself in self-pity. I do not know why. Perhaps because she was discharged after 2 days and has to go back to work after a week. Yes, it is illegal but labour case could take months and one is not allowed to work while she has an ongoing case.
I am not an employer but my-cowrker is the one who does all the cleaning and laundry so it was some kind of a "shock" knowing that Christmas time is like crazy here at work -- think full house and weekend parties for few dozen people--and that my employer and I will be doing a lot more travelling. With her preggy, I cannot have my before and after long ( UK) trips holiday and is now taking some work load off her. After the intial shock came the excitement.
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So here's what I think....
She will work as regular during the PG, If she can't work, then the days she can't work are subtracted from her salary just like if I was PG and took more sick days off that I was allowed to have according to the terms of my contract.
She will get care under the Hospital Ordinances anyway. AFTER the baby is born is another matter. I think you will have a problem if she needs maternaty leave and you have small children to care for. Ask her what she wants to do? If you have the time to find a replacement before her baby is born, get it processed etc., then she has her baby, that's a win win to me. You shouldn't be out of pocket very much at all if she has a normal pregnancy and birth.
Cheers
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cd
17 yrs ago
you would be out of pocket as you have to pay 10 weeks maternity pay at 4/5ths pay, plus pay for another helper during those 10 weeks. The actual maternity costs should be under $1000 at the local government hospitals. And I don't think you can subtract salary for someone taking time off for pregnancy related problems and hospital visits. As for after the baby is born you have no financial or moral obligations. It is up to your helper to find someone to look after the baby when they come back to work. My friend's helper had a baby and they let her keep the baby with her for the first 6 months but you dodn't have to.
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