A Big Decision to be Made by Immigration

Having read all the threads here, I have seen that people have sought the advice from a community that has been very generous in their expert opinion. In choosing the word "expert", I have not used the term too loosely as I have noticed many have either experienced the issue mentioned or have known someone close to them who has experienced a similar ordeal/issue.


Sometimes events steeped in adversity can generate a new positive perspective in that someone can learn from the mistake and look more carefully upon the horizon. With that said, there can be an event with the opposite effect, as in my case.


Now there is nothing more respectable than a face-to-face initiated by management to hammer out truths and get the facts. At my last job in California, there was an Employee Relations manager who met with everyone and HE initiated the meetings when he sensed tension amongst a group of employees in a certain department. This kept things real and honest, and employee morale was always high.


People didn't communicate at my last company. They would talk about success and expansion more often than about how to build a good image and keep moral high in the workplace.


Here is my question: Do management people in HK companies generally really try to damage the integrity of a good employee after they leave, and can care less about those who were not that much of a performer? What is the purpose, and particularly in the education field where families are always present, how is this action supposed to create a positive image for the company?


In my case (sorry for the long prologue), my former company thought it best that after I left to do the following:


1) Report me to an accredited teaching programme for misrepresentation.


2) Report me to Immigration for suspicion of breach of condition of stay (work visa).


3) Not pay me my owed wages and threaten me that they will take me to court and have me deported if I try to claim my wages with the HK Labour Division.


All of this for leaving the company at a time when all the students could not adjust to a Fall schedule. Did they think I was taking their students after I turned in my resignation?


Or maybe it was for being very communicative to parents to the point that management thought I was redirecting the parents to follow me after I left the company? If so, what made it so difficult for them to sit me down and ask me some straight forward questions? Or simply ask the parents? I am sure if I was redirecting one parent (out of 90) would have said something, or even a student who doesn't know any better but to tell the truth!


This whole thing has be borderline jaded. What will the next company do? The same thing? Should I under perform as a teacher so that no one feels "looked down upon" or inferior?


Now the big question....what will Immigration do.


It's been 4 months. No work. My visa is frozen pending investigation. I am finding it hard to simply not work at this time. I need to be able to support my family. My daughter is about to start school at the Korean International School, and expenses continue to accrue. While awaiting the decision regarding my past due wages, I must resume work but I am stuck. It has affected my family, and my poor wife is always stressed simply not knowing what will happen next. My potential employer is currently ready to transfer my existing visa and hire me immediately. I need to know that I am free to have my currently approved work visa transferred.


It is my desire to contribute to by the educational system in Hong Kong. Doing so will enable me to provide for my family. I have not done anything that would bring my credibility into question.


What will happen next? What can I do at this time that does not involve twiddling my thumbs?

Actually, an assortment of questions. But the big question, what can I expect to happen next, after renewing bail at Immigration two times already? I was initially brought in for questioning Dec. 2, 2012.


I cannot work as my visa is frozen pending investigation. I can, however, stay in HK until 2014. Yes the transfer will not transfer until Immigration reaches a decision.


Timeline:


Sept 4, 2012 - My resignation was submitted with two months notice. At this very time, the fall time slots have changed and parents were withdrawing their children. This appeared to management as if I was taking currently enrolled students with me in preparation for private classes given the fact my resignation was submitted at the same time. Incredibly bad timing, but since there was a new company waiting to hire me 60 days later, there was no time to waste.


Sept. 29, 2012 - Was suspended due to supposed evidence of misconduct (which I requested to see but was denied). In the suspension letter (which I refused to sign), it is highly contradictory. It essentially starts off by saying, "Notice is hereby given to you that your employment with the Company is suspended with immediate effect until further notice. During this period of suspension, you are not required to conduct any teaching for the company and your salary will continue to be paid" but then at the end of the letter it states, "We note that your last day of employment is coming up soon and you are further reminded to pay special attention to clause xx.x of the said Letter of Employment."


Oct. 10, 2012 - After two attempts to inquire about my owed wages via email, and after waiting 10 days for a response, I heard nothing. I filed a claim with the Labour Division for owed wages and they processed the claim immediately.


Oct. 15, 2012 - Letter received (Deed of Undertaking) from the company's solicitors for Wrongful Breach of Employment Agreement and Infringement of Intellectual Property Rights. Letter essentially wanted me to sign by statutory declaration and admit to wrongdoing, which I did not. Letter also indicated that "in the event we do not receive your reply by the date and time stipulated, we will have no alternative but to advise our clients to take such further steps as necessary including the institution of legal proceedings against you without further notice."


Oct. 20, 2012 - Former student's parent contacted me to let me know that she received a letter stating that I formally admitted guilt to the accusations made in the Deed of Undertaking. I immediately brought this to the attention of our lawyer and she said we should sue for defamation. I held off, given the fact that I wanted to reason with the company's owner before initiating such actions, and also for the fact that I sensed that legal fees would easily rack up and that in the end, I could end up losing in court.


Nov, 2012 - Met with a small assortment of lawyers, specializing in various areas. Business law specialist advised not to sign the Deed of Undertaking.


Nov 17, 2012 - Labour Division meeting. Owner, head of HR, and Curriculum manager were present. They had told the mediator that they would not pay me and that they do not have to because I had breached the employment contract. The mediator pulled out the handbook, and pointed to a clause that essentially stated "worked for wages must be paid. We do not care about opinions and outside legalities." So at the end of the meeting, the owner said that she will not take me to court if I sign the paper admitting guilt. I told her I would not sign it, and that I will be considering pursuing her for the defamation letter that she had signed off on, which she admitted to in front of everyone present.


Nov. 28, 2012 - New company that wanted to hire me began the paperwork for the transfer of existing visa. It was submitted in person to Immigration at 10:30am. That afternoon, Immigration called me in for a meeting and said, "It is in regards if your breach of condition of stay." Turns out somehow someway word got out that I was tutoring students outside of my employment. This was triggered the moment that I submitted the claim with the Labour Division.


Dec. 2, 2012: Meeting at Immigration takes place. I bring in a lawyer and her associate. I am advised to remain silent, as the lawyers wished to hear the type of questions that were asked, and also to see what evidence would be presented. I simply replied to every question, "I do not wish to answer at this time." They showed very little evidence other than a name card that I had made that beared the accredited programme's logo (which I was certified to use, much like a Microsoft Technician). At the end of the meeting/interrogation, I was told to report back on Jan 3rd.


Jan. 3, 2013 - Reported back to Immigration. Administrative only. Renewed bail. Scheduled to report back on Feb. 3, 2013.


Feb. 3, 2013 - Reported back to Immigration. Administrative only. Renewed bail. Scheduled to report back on March. 3, 2013.


Feb. 12, 2013 - After having met with various people, longtime residents who have been ESL teachers for years, I decided to write a letter to immigration. In that letter I stated the following:


I am currently awaiting an outcome from the Labor Board regarding monies owed me from my previous employer, as they failed to pay me my final wages upon my departure from the company. Additionally, I understand the Immigration Department may have an issue with the previous employer regarding my employment and their report to you of my alleged breach of condition of stay.


While awaiting an outcome, I have a prospective employer who will sponsor my work visa, and can transfer my current work visa to this new employer. But I wanted to get your approval to continue to pursue this new employer.


As there are no issues or concerns related to my suitability as an English Teacher, I would like your approval to continue to work while my previous case is decided regarding my previous employer. Even while employed with the new company, I will of course be available to answer any enquiries or concerns you may have regarding the above-mentioned case.


However, I am finding it hard to simply not work at this time. I need to be able to support my family. My daughter is about to start school at the Korean International School, and expenses continue to accrue. While awaiting the decision regarding my past due wages, I must resume work.


My potential employer is currently ready to transfer my existing visa and hire me immediately. I need to know that I am free to have my currently approved work visa transferred.


It is my desire to contribute to by the educational system in Hong Kong. Doing so will enable me to provide for my family. I have not done anything that would bring my credibility into question.


I would appreciate your response that confirms I am able to transfer my current approved work visa to the new employer.


Thank you for your time and consideration in this most important matter.

Your other questions:


ie) why are they reporting you to immigration for breach of stay conditions? were they not your sponsor or are they accusing you of working outside of their employment illegally?


They are reporting me because they assumed I was taking students after I turned in my resignation, as the Fall season was time for transition to new schools and parents could not adjust to the major change in the company's new class time slots, students were withdrawing in huge amounts at one time.


Yes they did sponsor my visa. Ironically, their reporting me to Immigration made things worse for them. They had actually hired many people and employed them immediately while the application for the work visa was being processed. So teachers were employed for months at a time with no valid visa. This was the case for me, so in reporting me, they compelled Immigration to dig deeper and see that not was I employed there illegally for a period of time, but many others as well.


Also, when they found one of my business cards with the UK programme's logo that they are licensed with, they had assumed I was poaching students. I had that card made but not distributed; they found a soft copy in my email. I had planned to use that card after I had received my dependent visa (my fiance and I planned to get married in HK last year).

I had not tutored on the side. Some parents received outside progress reports and consultations, but never any paid sessions.

Luck needed indeed. Although there is a part of me that wants it to go to trial. This will be an opportune time to assure the company's fate is sealed with evidence presented of criminal offenses.

Alex, "outside progress reports and consultations" does sound like you were doing some work on the side which was a breach of your conditions of stay. It doesn't matter that you say you weren't paid; you're not allowed to do paid or unpaid work for anyone except your employer if you're on a normal employment contract.


It sounds to me like you've been arrested by the Immigration Department for breaching your conditions of stay (otherwise you would not be on bail and have to report back). Have you been reporting to the Kowloon Bay Immigration Centre? The Immigration Department will not process your change of employer application until the Kowloon Bay Immigration decide whether to prosecute you or not. If you did work with your old employer before your visa was approved, you've breached your conditions of stay and so I doubt your prospects of getting this new visa approved. Also, you mention a wife, then a fiancee. Are you married and what sort of visa does your wife have? Don't want to be too pessimistic but it doesn't look good for you I'm afraid, but best of luck.

Wow, what a story!

"Do management people in HK companies generally really try to damage the integrity of a good employee after they leave,..."

I'd say your case is quite unique/extreme, no generalization regarding HK employers can be drawn from your experience.

More to your concern, my guess is that immigration has more damaging evidence against you than just an innocent looking business card. I doubt they would open an investigation on the strength of just a business card. (if the business card contained more than the typical contact, and professional qualification info, then it is different story. For example, if it contained business solicitation message.)

The fact that the case is serious enough to require bail, and two extensions indicates a more serious investigation. From your description, it is quite possible that the investigation is more focused on your former employer.

In the end, if immigration finds against you. The chances of your getting another employment visa in HK is low.

If you in fact did start working before getting your work visa, (not hard to prove based on dates of entry into HK), or if you did freelance work (harder to prove), then it is probably advisable to start looking for alternatives.

Your wife's visa status matters. If she has her own employment visa, or has right of abode, then you should look into becoming her dependent. Which would allow you to start working right away.

Your buggered mate! Immigration is very black and white about these kind of things. I've had dealings with them in the past (friends, not me) and they really are straight down the line. good luck.