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  • 1 Post By albyalby
  • 1 Post By LifeInHK
  • 1 Post By Sage

unused leave / vacation days

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  1. #1

    unused leave / vacation days

    Hi,

    My 24 months fixed contract is expiring soon and the company decided not to renew.
    It states that my annual leave is 22 days which I haven't taken any.
    HR tells me according to HK law the company will only pay me for 14 days unused leave. The other 8 days I must take.

    HR provided this clause:
    "An employee's entitlement to paid annual leave will increase progressively to a maximum of 14 days according to his length of service as follows:
    Years of Service Annual Leave Entitlement
    1 7
    2 7
    3 8
    4 9
    5 10
    6 11
    7 12
    8 13
    9 or above 14"

    Is it legal for them to force me to take the 8 days leave and not pay me for it?

    Also we just had a new HR lady now saying they may not even pay me the 14 days that was previous agreed with the old HR that left the company.

    Do you know if the company can force their employee to take leave and not pay for the unused days upon contract expiration?

    Thank you and appreciate any advice you may have.


  2. #2

    Join Date
    Oct 2018
    Posts
    10

    Threaten to go to the Labour Tribunal and the Company will hopefully back off - legal representation is now allowed at the Labour Tribunal there and and the Company will have second thought about going through the lengthy processes which are often pro-employee.

    Sage likes this.

  3. #3

    Join Date
    Feb 2007
    Location
    Shek Tong Tsui (HK Island)
    Posts
    263

    First , get your own information in order.
    1) What does your contract say about your leave ? Could you type up the exact wording.
    2) When you started work, were you given a copy of the "employee handbook" with the clause? If yes, then that copy (dated two years ago) would be relevant.
    Any revisions / updates since then is subjective.
    3) "HR tells me according to HK law the company will .... <do some bullshit stuff> "
    This sounds like a scare tactic.
    However, it depends on how big your company is. Is it a bank? How many people / employees are there?
    Smaller companies tend to think they can get away with murder.

    3) What was the previous practice for "end of contract" ? Ask around your colleagues.
    Did you get this job/contract through an agent? If you did, then call up the agent and ask. If the agent says '"it is between you and company, agent not involved..." then you find out who is the boss of the agency and ask them. Push the agent, as they would have previously placed people with the company

    You are being played by the HR , who is trying to "save money"; which is a drop in the ocean.

    ByeByeEngland likes this.

  4. #4

    HI,

    Thanks so much for the replies.

    This is how its stated on my contract:
    "
    Annual Leave
    You are entitled to 22 working days' annual leave during each full leave year. A leave year is the 12-month period commencing from January I and ending on December 31. Annual leave not taken in a leave year can only be carried forward to the first three months of the next leave year and thereafter, if not taken, shall be forfeited without any compensation. The leave taken will be deducted from the government mandated annual leave first then the portion of the company benefits.
    "
    No handbook.

    Do think the company have any pulled not pay my unused leave?

    Thanks


  5. #5

    Join Date
    Nov 2005
    Location
    Cramped island
    Posts
    5,585

    Look under resignation. From the look of it if they are so uptight about carrying only 3months (very likely in banking) then they are likely to have stated outright that leaves cannot be converted into pays... unless there are clauses that forbid you from taking leave during your period of resignation, then they are logically compelled to pay you for the forfeited leaves.


  6. #6

    Join Date
    Feb 2009
    Posts
    8,280

    Your on a 2 year contract. So you have a total of 44 days leave over the 2 years, you took 22 days leave in the first year (or you forefeited them if you didn't take within the first 3 months of the second year), you took 0 days in the second year, so balance remaining is 22 days. Is this correct?

    My understanding is that you should be able to get paid out for the 22 days if that's what you want. Or if they are requesting you take 8 days off before your last day and then they only pay you out 14 days, its not really an unreasonable request for them to make. It really depends on your workload, do you have tasks to handover to colleagues, the company financial position, etc.


  7. #7

    Join Date
    Jul 2006
    Posts
    3,886

    I can't be arsed to go through it, but I'm pretty sure the employer ordinance says you must be paid in Lieu for holiday days not taken. Where the fun starts is how they calculate what one days pay equals - they'll likely try to screw you on that as well.

    Unless there is an express condition that the company can require you to take annual leave on command, - seems not, their contract (like most) is geared to you not taking too m.u.c.h holiday. Then tell them exactly what you expect and put it clearly in writing. Even if that express line IS in the contract, it's not impossible that a tribunal would find it contradicts the employer ordinance in some way.

    Labour tribunals are a powerful tool, where you control the agenda and the timing, they'll almost certainly back down if you actually summon them to a tribunal (it's free to do).

    No need to back down on ANYTHING you are legally entitled to, so study the employer ordinance and your contract and your confidence will be clear to them

    In the past, when I summoned my ex employers to tribunal, I cited the CEO as the defendant and picked a date when I knew he was at a major industry event in France. They paid up and it never went to tribunal.

    It should be an easy victory for you.

    ByeByeEngland likes this.

  8. #8

    Join Date
    May 2011
    Location
    Sai Kung
    Posts
    5,003

    Occasionally Mr Sage you are the voice of common sense!

    I still think we need to understand one or two finer points about the full employee contract especially given it was a two year rather than untimed contract. Evidence so far is definitely in favour of the employee