Posted by
mochi
18 yrs ago
We hired a helper through an agent. In between our telephone interview date to the HK visa issue date, she got married.
She told the agent of her marriage but the agent did not pass on the info to us. She just told us the truth as she's feeling a bit "sickly" in the mornings.
She works for us less than a month and we have not got her insurance sorted out. (Partly due to family travel and also her HKID is not ready yet.)
I am at a lost as of what to do. Any advice, greatly appreciated.
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That's not a good experience. Have u questioned the agency about thier negligency?? Did the agency arrange another bodycheck for her upon arrival HK?? That is what i do everytime when new maid arrives HK. Anyway i will try to dispatch her back.
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Legally, your problem is that even if she got married and got pregnant it still doesn't give you the right to fire her. This is what the FDH Guide tells you explicitly. Even if you claim that she was not married during the interview but married once she arrived -- so what? She is a free woman.
I do not agree with this, because I had an experience of getting a pregnant DH. She worked for me for 2 months, announced that she got married , got pregnant and wanted to leave me. Interestingly, her husband, also Philipino, got PR here at the same time. So, she used me to get a visa for 2 months untill her husband gets a PR. I was lucky that she wanted to leave. But I, working full-time and husband working full-time, had awful time finding a new DH to take care of our 6 yo daughter in a short time.
My point is, if she "happened" to get pregnant, she might be willing to go back home. But if she "planned" to come here knowing she was pregnant, there is not much you can do. Talk to the agent. However, I doubt he/she will do anything.
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TC
18 yrs ago
Another side issue is the matter of the insurance. If you mean the compulsory insurance then you have already broken the law yourself, regardless of the 'good reasons' you might have. From the helper's viewpoint she would reasonably expect the insurance to be in place (because that's the law), so there are issues to resolve on both sides. As far as the main issue is concerned I'm not sure there's anything you can do unless your helper terminates the contract (your own ability to terminate are severely limited by law due to her pregnancy), but I would most certainly be taking it up with the agency. And forcefully too, on the basis that it's not the 'same goods that you thought you were buying' and they have misrepresented the facts to you. If you can point out (again quite forcefully) that (a) you would never have considered employing a married helper, and (b) the agency was aware of the new marriage - also that you will consider taking legal action against the agency. See what that brings. But my overall view is that your preference for a single rather than a married helper will not be seen as material, because single helpers get pregnant too. Another tale of woe relating to the employment of domestic helpers in HK. Aiya. Good luck.
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And we do now have certain equal opportunities laws here, one of which covers family status. You cannot legally use whether a potential employee is married or single as an employment criterion here, as it is unlawful.
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It's true -- human rights and so on.
But for example I, as an employer, am not a big company that can afford hiring a substitute for a mother on maternity leave. I can not be dependant on a helper who may unexpectedly feel sick at any time during 9 months. Women with kids know what it means to be pregnant.
So, she feels sick, I give her sick leaves throughout 9 months, plus I pay her 10 weeks of maternity leave. The question is: who is going to take care of my kids??? My husband and I work full-time. Our financial situation is not that great to hire a baby-sitter for 10 weeks on top of paying a maternity leave. An organization can afford do so. I can't. So, wouldn't it be unfair for me as an employer?
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TC
18 yrs ago
Sympathies, but the law doesn't allow for that - other than if she gets to the point where she cannot cope, and that fact is certified by a doctor, then you are able to terminate the contract and repatriate her. And whilst might be against the law to discriminate on the basis or (among other things) marital status, any propsective employer is allowed to have a reference for one status or another and to exercise choice based on that preference when selecting between candidates. It would be best not to make it too public that the choice was based on the marital status, but it's possible. The discrimination comes after there's a contract between the two sides. Your dilemma with what to do when she's on maternity leave is the same dilemma faced by every employer - how is the work supposed to be done when my staff member is away on her maternity leave? I still think you should be tackling the agency for withholding a material fact.
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TC
18 yrs ago
Incidentally, Labour law in HK says that the employee is entitled to maternity leave pay if she has been employed under a continuous contract for not less than 40 weeks immediately before the commencement of scheduled maternity leave. From what it sounds like you will not be obliged to pay her for while she is on the maternity leave itself. And here too I'd be taking the tough stance and letting her know that as soon as the pregnancy is confirmed. That would result in some savings with which you could hire a temporary nanny. Just a thought.
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If I was pregnant BEFORE I started my new job in HK I would not be entitled to maternity leave/ pay/ benefits/ medical cover from my new employer. I am pretty sure it is the same 4 you. If she got preg before she started work for you then it may be that you cannot fire her, but you are not legally obliged to pay her any additional time off/ mat leave etc. Call up immigration and find out. Be warned employers - get your helper a medical in HK before they start with you.
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mochi
18 yrs ago
Thanks all for your information and advices. I spoke with the agent and they deny any knowledge of her recent marriage. However, they did a pregancy test before she left her home country. It was negative. ( I was amazed the agent can still do such test...)
Back to my helper, her marriage status wasn't important to us. In fact, she's a single mother. We were at a lost as how to accommodate her needs and run our home smoothly. (We both work full time, two kids and a dog.) When I told her the pregancy test result from the agent, she was quite reliefed. She may just suffering from homesickness and want to be with her new husband. She did mention that her husband is trying to get a job in HK. We will have to take things one at a time......
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ness
18 yrs ago
But perhaps the pregnancy test was NOT done or done very early and not accurate and homesick doesn't make you physically sick particularly in the morning? Why not offer to get her a pregnancy test from a chemist - or has she had her monthly period since she left the PP's... not strictly your business unless she is asking for help from you with regard to this situation.
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