Contract Termination.....Please help!!

I signed a part time work contract earlier this month which will begin in the new school year, August 20 to be precise. I'm only working 4 hours in the afternoons. However, they have now told me that for the first two weeks I must come in and work full time hours (with no extra pay) for "orientation". I simply cannot do this due to family committments and am thinking that if they aren't flexible (I can work my normal hours during this time) I will give them notice that I will not be taking up the contract.

However, I have two questions that I hope someone can help me with. My contract states that I must give three months notice..."Within each academic year either party may terminate the contract by giving no less than 3 months notice..." Technically the academic year has not started yet although I signed the contract early this month. Would I be breaking my contract by giving less than 3 months notice before I actually start? The first 3 months is considered probation and then only two months notice is required. If I haven't even started does that still count as probation? Also, there is a clause that states ..."If I fail to abide by this contract I agree to pay HK$10,000 to cover the schools administrative and related expenses..." Is this even legal? If I only work four hours in the afternoons, surely replacing me would not cost even close to $10,000.

I was kicking myself for signing the contract but I felt pressured into signing it there and then without having a chance to take it home and read through it. Dumb, I know... Anyway please help!

First, a serious disclaimer: I used to practise English law in London but haven't done so for over three years so I am nowhere near up-to-date; further: I know nothing at all about Hong Kong law but understand that, to some extent, at least, it is based on English Law. You really do need to see a local lawyer specialising in employment law. I merely offer some observations for you to discuss with him/her.


Although, in England, employment law is heavily statute-influenced, it is still based on the common law of contract


The first thing any lawyer worth his/her salt would do is ask to see the contract. It might well state your normal hours as being four hours per day but there might be a further proviso requiring you to work additional hours where necessary for the proper performance of your duties. If there is such a flexibility clause, then you might find it difficult to say that your employer will be in breach of contract in requiring you to undertake the "orientation" work.


If there is no such flexibility and, if there is no doubt that your contracted hours are no more than four per day, then, if your employer insists on your working full-time for the first two weeks, he will be in breach of contract.


Such a breach is likely to be "repudiatory" -- in other words, it is so serious that it entitles you to terminate the contract immediately and without notice. Under English common law, this amounts to an unlawful, constructive dismissal by the employer - effectively, he has forced you out. An unlawful dismissal is one where you have not been given proper notice and entitles you to bring an action for damages breach of contract. Depending on circumstances far too numerous to discuss here, it might also give you an unfair dismissal claim.


Under English law, there might also be sex discrimination implications depending upon your personal circumstances. I have no right to assume this, but it might be that you are a woman and are working part-time because of family commitments.


So -- the first port of call is to the contract itself. If your employer is entitled to require you to undertake this orientation work, then you have no grounds for complaint. If there is no such entitlement then, if he insists, you are probably entitled to tell him where to stuff his contract (a legal phrase, you understand).


Of course, Term has not yet started so this threatened breach (if it is such) is yet to happen. Must you just wait and see if they carry out their threat? Well, as I remember it, the very threat of a repudiatory breach allows you to resign and complain of constructive, unlawful dismissal. The threat or a requirement amounts to an "anticipatory, repudiatory breach" so you don't have to wait until it happens.


All this means that, if this would be a repudiatory breach, you can simply accept the breach and are under no obligation to give notice. Rather, it is you who has been dismissed so we are not even looking at any potential liability to pay the 10,000 HKD.


On that subject, under English law, this might well amount to a "penalty" i.e. a punishment for breaching the contract which is designed to deter you from resigning without proper notice. Penalty clauses are unenforceable so, if it is a penalty, you can tell your employer where to stick it. But it might not be a penalty. Instead, it might amount to a "genuine pre-estimate of loss". That is the employer's loss where you have breached your contract by failing to give proper notice.


The wording of the clause is interesting: "..."If I fail to abide by this contract I agree to pay HK$10,000 to cover the schools administrative and related expenses..."


This is not limited to your failure to give notice but would cover ANY failure by you to abide by the contract - even a minor failure with no economic consequences to the employer at all.


If I were advising the employer I would not give them much hope that this clause would be upheld.


It seems that this threat is simply being held "in terrorem".


If this clause is common to the contracts of all of the teaching staff, then there might have been previous occasions where a teacher has resigned without proper notice and it would be interesting to find out whether the employer has previously sought to enforce this. If so -- was it successful? If it was, then they are likely to seek to enforce it again. If they failed, then it amounts to an empty threat. If it has never been litigated before then, if there is no certainty that the clause would be upheld in court, the employer might not feel inclined to test it because, if they fail, this is a signal to all other teachers that they can ignore the clause.


This does not, however, mean that a failure to give proper notice will be without consequences. Where proper notice is due and a failure to give it causes the employer loss, he is entitled to sue for damages for breach of contract -- but he will have to prove his losses and will have to take reasonable steps to mitigate them.


So much for the law. Fascinating though it might be for lawyers, you want to know what you should do. You might well have decided that you have no intention of working for this employer at all -- whatever the consequences might be. In this case, you would need to move quickly and set up your arguments in advance. A carefully worded letter is required. You might, however, be prepared to work for this employer provided you don't have to do the two weeks full-time orientation. In this case, a different, but equally carefully-worded letter is required. You would need to make it clear that you are unable to work for two weeks for orientation and are only able to attend for the four hours you have been contracted for. You then need to wait for the employer's response before deciding on your next step.


If you do decide that you wish to give notice then, again, one would need to look closely at the wording of the contract. If any notice has to be given "within" the academic year, how is that defined?


If the definition is, for example, from the first day of the autumn term, this suggests that your notice cannot be given until the academic year has started. This would make sense since you have not actually started working and the whole point of a notice period is to give you or your employer time to find something/somebody else.


On the probation point, again, one needs to look at the contract. It seems nonsensical to suggest that "probation" can start before you actually commence your duties so it looks like you might only be able to give the two months' notice from the first day of term.


From a practical point of view, however, you might well wish to give your two months' notice immediately so that the school can start casting about for a replacement and then see what they do about any alleged breach.


I know that the above is all hedged with "ifs" and "buts", but there is often a practical solution to such problems. Nobody wants to litigate. Nobody wants conflict. I spent a lot of my time dissuading people from a going to court -- they have better things to do with their time. Your employer might be well advised just to accept the fact that you no longer wish to work for them and get on with finding a replacement.


For my part, if I were advising the employer and felt that they had no right to require you to work full-time in the first two weeks I would simply tell them to find a solution - which might be simply to accept the fact that your orientation will have to take place within your contracted four hours.


After all -- they want you to work for them and you want the work.


So, maybe all you need to do is say: "sorry, but, with the best will in the world, I can only work four hours per day and we will just have to work together to make sure that my orientation is effective".


Thus, maybe you should just tell the Principal this now and see if you can reach an accommodation.


In this way, you can stop worrying and you don't need to spend money on lawyers. And, as we all know, lawyers can seriously damage your wealth.


All of the above might be entirely academic since I assume we are talking about Hong Kong law here. But we might not -- the contract might specify that some other law applies.


Sorry this has all been a bit long-winded, but, for most lawyers, brevity is rarely a virtue