Employment Law Advice

Earlier this week my employment was terminated. The reasons that were given were performance related but my suspicion is that the real reason is due to racial bias and other sensitive matters that I am aware of. I would like to seek assistance as to how best proceed, where do I stand legally etc. Whilst I have residing in HKH now for over 6 years, I am completely new to employment law etc. I have read that there is a HK Tribunal for employment matters but genuinely believe that this matter may well be beyond this. Any advice that you can offer is appreciated. Thanks

Disclaimer: I'm not a lawyer but I've had some experience in these matters.

First, how were you terminated? Most contracts will have termination for convenience and termination for cause (e.g. bad performance). If they let you go and you're working your notice period or they've paid out your notice period, that's termination for convenience (which you or them can exercise at any time) and there's not really anything you can do, no matter what you might believe about the real reasons they did it.

If they terminate you for cause, they can do it without a notice period or any pay in lieu of notice. But for them to do that, they need to show that you (I'm quoting):

"(a) wilfully disobeys a lawful and reasonable order;
(b) misconducts himself;
(c) is guilty of fraud or dishonesty; or
(d) is habitually neglectful in his duties.

Employers should note that summary dismissal is a serious disciplinary action. It only applies to cases where an employee has committed very serious misconduct or fails to improve after the employer's repeated warnings."

This is from the HK Employment Ordinance, as per the HK Labour Department's website here: http://www.labour.gov.hk/eng/faq/cap57d_whole.htm

To bring a claim, you can go to the Labour Tribunal here: http://www.judiciary.gov.hk/en/crt_services/pphlt/html/labour.htm - they have the jurisdiction to hear all cases except tort.

I think what you're talking about may go in to tort, but if they haven't given or paid your notice you may be better off just lodging a claim for unpaid salary - that's easy to prove, and might shift the burden on them as for why they haven't paid it. They might prefer to pay rather than risk a court case. Proving discrimination might be a bigger payoff (or might not if you don't get damages), but is going to be very difficult - not sure about the other 'sensitive matters' but you'll probably find the same there.

Anyway, you can get free legal consultations with the Duty Lawyer Service, though there's a waiting period: http://www.dutylawyer.org.hk/en/free/free.asp

You can also try http://www.choosehklawyer.org/en/search_fl_start.asp - there's a list of lawyers who will give you a free consultation up to 45 minutes. But honestly, most lawyers will give you a free consultation anyway just to see if your case is worth taking.

Hope this helps.