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How can I sue my HK Employer for withholding my final salary after I have left the company?

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  1. #41

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    Quote Originally Posted by Evee:
    Katherine, I am here looking to advse and not to pick a fight with you . But all you have done is to put me down at all corners.
    NO, there is no information withheld from my initial request for advise. I signed a one year contract with the HK Company and I am to be based outside of HK. The agreed salary was $X and the Company contractually agreed to be responsible for all taxes or any statuory deduction. I tendered my resignation by giving 90 days notice and the company officially accepted my resignation in writing. I did all my handover and resignation clearance (signed off by Managing Director and 8 other department) with no issue. Right up to the last day, everything was fine and the company even confirmed that there will be annual leave balances paid back to me. Now, the Company has gone quiet, the final pay is overdue by a month. and they are ignoring me, my emails and my calls.
    I'm not trying to pick a fight either. But this stuff about tax is real, and I suspect your employer was either unaware of it and then suddenly got told by their admin dept or is just trying to follow the law while being confused because you are a very unusual case. I suspect they are embarrassed that they didn't pick it up earlier and are trying to "fix" the problem, figure out if they have a liability or something and then will remit your salary. Nothing in your posts suggests that you actually have anything to worry about. Had you stated that you hated your employer, that they had always dicked you around and that is why you are leaving, I might have assumed (as several other posters on here have done, with their advice) that your employer is a bastard and you should sue them/report them to the labour dept etc etc.

    If my interpretation of what is going on is correct, you just need to be a bit more patient and it will all sort itself out. Surely this is a better outcome than making a fuss, being told "but we had to do this by law" or worse, having the Labour Dept tell you they had to do this by law - and burning bridges you may not have wanted to burn?

    I believe there is a limit on the time the employer can hold the money. The ordinance (linked by someone else earlier) should tell you that limit and as soon as it has passed, throw the book at them.

    Just don't put yourself in the position of looking silly by doing it earlier.

  2. #42

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    Quote Originally Posted by chuckster007:
    The employee NEVER WAS IN HONG KONG LOL
    I know. Do you think the Ordinance was written with someone like this in mind? Or that the average admin bod in a HK company can read it with this in mind? If yes, you have come across far smarter locals, far better at dealing with "out of the box" situations, than I have....

  3. #43

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    Quote Originally Posted by GlennBond:
    This is horrible! Typical Chinese mentality for some out there. Save a dollar any way you can! Even by cheating a guy out from his last paycheck! So cheap of them! Yes, get a decent lawyer that knows about employment legal laws for foreigners. Then sue their cheap as**es off! Also, try not to leave right away. They are counting on that. Then it's harder to get anything from them. They are banking on this. Literally!!!
    Really? I find Chinese much more honest than Westerns. And I am western!!
    atschang likes this.

  4. #44

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    Quote Originally Posted by Evee:
    Katherine, I am here looking to advse and not to pick a fight with you . But all you have done is to put me down at all corners.
    NO, there is no information withheld from my initial request for advise. I signed a one year contract with the HK Company and I am to be based outside of HK. The agreed salary was $X and the Company contractually agreed to be responsible for all taxes or any statuory deduction. I tendered my resignation by giving 90 days notice and the company officially accepted my resignation in writing. I did all my handover and resignation clearance (signed off by Managing Director and 8 other department) with no issue. Right up to the last day, everything was fine and the company even confirmed that there will be annual leave balances paid back to me. Now, the Company has gone quiet, the final pay is overdue by a month. and they are ignoring me, my emails and my calls.
    The rule is 7 days, past that the Employer is in trouble! And you can claim interest and costs.

  5. #45

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    Quote Originally Posted by Evee:
    My place of work is not in HK. I have not been to HK more than 3 days during the duration of my contract. The company remits my salary (tax-free) to my overseas account. Under my contract, The company is obligated to pay my taxes
    By law, individual are required to declare the income and gets tax assessed. Company will reimburse you for the tax, but cannot get taxes assessed on your behalf. How long were you employed? Have you gone through any tax assessment before?

    I think you might need to visit IRD, get taxes cleared (even no tax) and get letter of release. Only then the company can release your last month payment.
    dentarthurdent likes this.

  6. #46

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    Original Post Deleted
    Is it not his source of income/employment is a HK company, in which case it will be taxable?

    He has to claim full exemption from tax as all service rendered are outside, by virtue of territorial principle of taxation.
    TheBrit likes this.

  7. #47

    I agree with shafiq - as an employee of a HK company a tax return is needed, but with the employment conducted entirely outside HK then a 100% exemption can be claimed.

    Note to the OP for the future - it would probably have been much better to have set up a business entity to take the work as a contract, and then for you to be reimbursed by that entity. Depending on the tax rules where you actually did the work that could well minimise your bill there as well. (Though I'm guessing that you may be hoping to evade tax on your income altogether - be aware that the HK IRD does talk to overseas jurisdictions, so you may have a surprise coming!)


  8. #48

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    Quote Originally Posted by MandM!:
    The rule is 7 days, past that the Employer is in trouble! And you can claim interest and costs.
    Yep, it is very clear from the 1st page link. The employer needs to get his/her affairs in order and submit tax docs no later than 30 days before the final date. They cannot withhold the salary past the 30 days after they submit the forms, which means the max they can withhold after the final day of work would be 7 days.

    I've always found the IRD to be great, let's say there was an emergency case, short notice was given and the employer was panicking about being stitched up for a tax bill. I'm sure a visit to IRD would have it all sorted out within a day or so. No need to be complete a-holes.

    Withholding final salary is one of the scummiest things an employer can do, and I am an employer myself.

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