A social worker filed a case in the Labour Tribunal for the employer social welfare organization to fire him during his sick leave. He is claiming unpaid salaries and compensation for payment in lieu of notice totaling HK$313,000. However, his employer defended the claim by the fact that the plaintiff concealed his criminal record of sexual assault against children and was jailed for eight years ago. His employer, thus, claiming his dishonesty, only agrees to pay him HK$7,300 for the unpaid wages. The parties failed to obtain consensus and the judge held in favour of the employer. The judges said that the plaintiff was not entitled to his sick leave with medical certificates automatically but it requires the employer’s approval.
According to s.33 of the Employment Ordinance (Cap.57), employee under a continuous contract for a period of 1 month or above shall be entitled to accumulate two days of paid sick leaves each month in the first 12 months and accumulate 4 days each month thereafter for a maximum of 120 days. An employer shall not terminate the employment on any sickness day taken by the employee unless in accordance to the valid reasons such as misconducts or the employee is guilty of fraud. The employer will be further liable to a further sum for the wrongful termination as compensation payable to the dismissed employee. The employer in the case above argues that the plaintiff was dishonest about his criminal record, and thus, the company could terminate the employment contract without notice or payment in lieu. The parties failed to settle and the court adjourned for further hearings. Although the employer may fire the social worker due to his dishonesty, it would have been smarter if they fired him not during his paid sick leave to avoid disputes.
If necessary, you can also apply for legal aid. Ms. Ngan is a member of the Legal Aid Department Penal for Criminal, Divorce/Family Law, Employees’ Compensation, Personal Injury, Medical Negligence, and Land Disputes. If legal aid is approved, the aided person has the right to choose a lawyer to represent.