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Under section 32K of the Employment Ordinance, the five valid reasons for dismissal or variation of the terms of an employment relate to:
- the conduct of the employee;
- the capability or qualification to perform work;
- redundancy or other genuine operational requirements of the business;
- statutory requirements; or
- other substantial reasons.
If an employee has been employed under a continuous contract for not less than 24 months and is dismissed by the employer without a valid reason as specified above, then the dismissal would be unreasonable.
With regard to “the conduct of the employee”, there are many examples of employees’ misconducts which may be considered as valid reasons for dismissal. These examples include: persistent lateness, drunkenness during working hours and disclosing confidential information, etc.
Dismissal in the following circumstances contravenes the law:
- dismissal of a pregnant employee;
- dismissal while the employee is on paid sick leave;
- dismissal because an employee has given evidence or information in any proceedings or inquiry in connection with the enforcement of labour legislation, industrial accidents or breach of work safety regulations;
- dismissal for trade union membership and activities; or
- dismissal of an injured employee before the parties concerned have entered into an agreement for employee’s compensation or before the issue of a certificate of assessment for the injury.
If the employee is dismissed other than by a valid reason as specified in the Employment Ordinance AND the dismissal is in contravention of the law as specified in (1) to (5) above, it would result in an unreasonable and unlawful dismissal.
If you are facing unreasonable dismissal or unreasonable variation of the terms of the employment contract, before bringing the dispute to Court, you can try to seek assistance from the Labour Relations Division of the Labour Department (telephone hotline: 27171771 or email: firstname.lastname@example.org). The staff of this Division provides a preliminary conciliation service to help in settling disputes and claims.