Yet another pregnant helper question

I stupidly hired our helper in Feb without a medical check. She left her previous employer 1 year early because the woman was pregnant and the helper didn't want to take care of 2 children (already had a 6 year old). Well, lo and behold, our helper let me know 6 weeks after starting work that she was pregnant. She is now on maternity leave. We hired a helper just so we could travel (we have 2 dogs). But she has maternity leave, then wants to take her baby home, then wants Christmas off, then has to go back to the Philippines for visa renewal in February. She won't be here for us to travel. Further, I have enjoyed not having a helper around (there were minor issues, and lots would have to change if she returned) and now that I have had to find dog walkers and boarding kennels and the like, we don't really need her back. If we terminated her contract after her maternity leave (or during), is that considered "terminated for redundancy"? I've heard the term terminated for redundancy, but don't know that that means. Essentially, we don't need our helper any more - doesn't that make her job redundant? Also, is there a time we can let her go that won't cause problems where she had her baby in Hong Kong but plans on taking her home when she is old enough? Don't want to cause problems with her visa or her baby's, but we just don't need a helper.

Call Immigration 28246111 and tell them what you wrote here.

It is better to get it directly from them rather than this website.

Also you can call the Labour Dept to ask them how you would pay her final settlement.

I expect it would be one month's salary plus air ticket etc. that is listed on the contract.

If you don't want a helper, she can't stay. period.

She is here on a contract visa and if that contract is broken, she needs to leave 10 days after the final day with you.

Good luck. I don't feel you owe it to this woman the convenience of all this PG etc. baby etc. just to walk your dogs!

Thanks hkwatcher for the information and the number for immigration.

I'm not sure if you have looked up this information, you could also contact the immigration dept by email, you'll find the email contact address on the Immigration dept HK website.

There is no way you should keep this helper on after she has had the baby, and you should not be expected to have her baby in your home disturbing you. She has deceived you by taking a job, when she probably knew she was pregnant,



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.


The information may help you to determine if your helper is indeed eligable for maternity pay.

To synthesie what Susie1 has forwarded you, you don't need to pay her for her maternity leave but you must give her the time (10 weeks off). you alsocan't fire her until she returns to work after the maternity leave.


You don't nee dont give her vacation at Christams and not sure about the visa renewal thing next year, once visa' are issued they are issued for 2 years when it is a terminated contract and I'll assume she was a terminated contract as you said she left her previosu employer early.

Thanks Susai1 and lagrue for the information. The language about pay during maternity leave is confusing: "employed for not less than 40 weeks immediately before the commencement of scheduled maternity leave". I am not sure what that means, except she has only been with us for about 20 weeks total, so "less than 40 weeks". If that is read as the opposite of "not less than 40 weeks", then no pay for maternity leave seems legal if stingy (we will probably pay her the maternity wages). I actually called the labor board about that when she first told us of her pregnancy, but all the rep could tell me was exactly what the language is in the book. That isn't the issue as much as just when we can terminate her contract. I thought it would be when she is no longer pregnant, but seems that isn't the case, and we will just have to wait all of this out. I think I would have tried harder in my heart and mind to find a need to keep her on if we had had enough time to develop a good relationship before she told us of her pregnancy. But with the minor issues that had started adding up and now all the inconveniences, it just doesn't seem to be in our best interest to keep her on.

Oh, and lagrue, to your point about the visa renewal, she left her previous employer a year early because she didn't want to take care of the baby they were expecting. I'm sure there is some irony in that somewhere.

House No7.

This I know as a certainity - you do not need to pay her the maternity leave. You must give her the 10 weeks but not paid. If you decide to pay her I would tell her you are doing it out of the goodness of your heart but she is not entilted to it.

In terms of terminating the contract after she comes back from maternity leave, again 100% you may terminate her after she comes back from maternity leave but you can not during her maternity leave). Unofrtunately I wouldn't even give her a heads up that you are going to terminate her as she appears to be one of those calculating ones and she may complain to the labour department if you tell her before hand that is what you are planning to do.

About the visa renewal, she doesn't need to go back to renew her visa. Have you seen her passport? When is the visa chop til? The only ones that need to go back for a visa renewal are the ones who have a finished contract and do not take their 2 weeks holiday BEFORE starting the new contract - then they have to exit HK within a year to 'renew' their visa. Even if they need to renew thieri visa my helpers just went to Macau for the day (they paid the travel themselves).


Finally did you ever talk to her old employers? May be they cut her a deal when she told them she was pregnant and paid her out some 10 months to get rid of her (happens all the time) and not she latched onto you to pay her way!.


You are just being taken for a HUGE HUGE ride my friend. Get rid of her ASAP. If it were me, I would NOT pay her her maternity leave. Time off, yes as required by law but no $$$$

Yes, I think you are right lagrue. so many things have come up that I now know she lied about that I resent even having to still deal with her. Nonetheless we have gone ahead with paying her. We don't want any problems when we fire her after her maternity leave.

tell her you expect her to be back at work on day xx (last day of her maternity leave). explain to her either she takes her baby home during her maternity leave (trip paid for by herself) or she arrange for someone to care for the baby whilst she works (but under no circumstances can she have the bay around during her work hours). Put it in writing in case later she tries to stir up trouble when she's fired.


Don't give her anymore paid time with you after the maternity leave. If you allow her to go home after the maternity leave, she will claim she is still your employee and as such you need to pay her wages. If you decide to give her upaid leave then get it all in writing. Saves you trouble later.


If she decides to mess with you some more after the maternity leave is over by a) leaving for a holiday to bring her son home b) working whilst her son is still in your home, you can fire her for gross misconduct/service not meeting expectations. At least you have it all in writing and have a built a case against her.


I wouldn't give the time of day to these sorts of people. And I can understand your resentment with having her in your home knowing she's fed you nothing but a pack of lies from day one and taken every advantage of you. Goodluck and let us know how you go.

http://www.labour.gov.hk/eng/faq/cap57h_whole.htm#q1


Hope this helps...