I am writing in regards to a potential violation of my current employment contract. Kindly find attached my employment agreement (I have changed the font of the relevant clause connected to the potential violation of the Employment Ordinance to red for easy reference.)
Some background information: I have been employed by "The Employer" and have worked for them for 1 year and 8 months. I would like to leave for another opportunity at a different company from a different industry altogether. The new position commences on November 1, 2018. This would mean that I would still have around 3 months remaining before my employment contract naturally terminates. I have already submitted my resignation letter on 22 August, 2018, and thus my last day with The Employer would be on 22 October, 2018.
The problem is, after having talked to my HR department, if i am to leave, they insist that I have to (as per my contract):
1: Give two months' notice (I am fine with this )
2: Compensate The Employer 3 MONTHS (or the remaining term of employment) of aggregate salary
3: Potentially compensate The Employer more than just my average salary for the past 12 months, including but not limited to: Discretionary bonus from last year, paid sick leaves and annual leaves).
This is directly contravenes with Chapter 9 of the Employment Ordinance (I have attached the PDF for ease of reference). It is stated in the Ordinance that an employee is to pay only the average monthly wage in the 12 month period preceding the day when notice of termination is given, and that the employee has to only pay the number of months specified in the notice period (which is 2 months in my employment agreement) irrespective if this is a fixed contract.
The fact that the company has a) asked me to pay an aggregate amount that is MORE than my 2 months notice payment and b) could potentially ask me for a greater compensation due to me having used my all my sick leaves this year, makes me question the integrity of the employment agreement.
I would like your advice on whether my employment agreement (specifically termination clause) is compliant with the HK Government's Employee Ordinance. If what is stated above happens to be true and The Employer really is in violation of the Employee Ordinance, what steps might I take in order to take action against The Employer? Ideally, I would like to skip paying them anything if this turns out to be in my favor.
What do you all think should be done at this stage? Who should I consult (ideally like to avoid any consultation fees with lawyers or at least keep them to a minimum)