- 2 -
"The proposal is primarily designed to remove unscrupulous employment practices and should therefore have no effect on reputable employers," Mr Cheung emphasised.
Under this proposal, an employee may make a claim and be granted remedies unless the employer can prove that the dismissal or variation is due to one or more of the following valid reasons:
the employee's conduct;
the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do; redundancy or other genuine operational requirements of the business; statutory requirements, i.e., it would be a contravention of the law by the employer and/or the employee if the employee were to continue to work in his original position, or under the original term(s) in his employment contract; or
some other substantial reason(s).
To make a claim for unreasonable termination of employment, an employee has to be employed in a continuous contract for a period of not less than two years.
"This qualifying requirement is the same as that under unfair dismissal legislation in the United Kingdom and that for entitlement to severance payment in the event of dismissal by reason of redundancy," Mr Cheung said.
However, there is no qualifying service requirement for a claim regarding unreasonable variation of the term(s) of the contract of employment, lest this will easily defeat the purpose if an employer varies the contract terms before the employee attains the qualifying service for certain statutory benefits. There is also no qualifying service requirement for claims relating to the above unlawful dismissals, but the employee must have done the things relevant to the grounds of dismissal within 12 months preceding the dismissal.
Mr Cheung said that the court or Labour Tribunal might make an order of reinstatement or re-engagement, award of terminal payments and/or compensation, if a claim is established.
"An order for reinstatement or re-engagement may be made only if it is agreed by both parties, and the court or the Labour Tribunal shall first consider whether to make an order for reinstatement before considering whether to make an order for re- engagement.'
H