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Employment Termination - Is my employer trying to screw me over?

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  1. #1

    Post Employment Termination - Is my employer trying to screw me over?

    I was unfortunately let go on Monday (28 November) among fifteen other employees as part of a restructuration (my industry is accounting software).

    I worked in this company for more than 3 years as a full time employee and the employment contract stipulates a 1-month notice period.

    The company is extending a 1-month garden leave to all dismissed employees. As of my last day, I had 20 days of unused leaves. Initially they said they would not pay for my unused leaves but eventually they said they would (as I believe they are legally obliged to ).

    As it is clear they are trying to pay as little as possible, I was wondering:

    1) Can the employer pay the notice period based on the last month salary instead of the 12-month average wage (which should includes commissions too)?

    2) Can the employer use the unused leave on weekend and public holidays? (they just extended the 1 month notice period ending on 28 December and they added 20 calendar days to determine the last employment date)

    3) They said they would use the MPF contributions to offset the long term service payment. I believe this is legal so nothing I can do on this end

    I would really appreciate any help guys. I also tried to quote some law firms on the above but their rates (50k) are too expensive and largely offset the sum what I am trying to get from my previous employer here..

    Last edited by TheRoadAhead; 02-12-2022 at 07:50 PM.

  2. #2

    In Hong Kong, they'll try everything. They don't care.

    Go here:

    https://www.labour.gov.hk/eng/legislat/content2.htm


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  4. #4

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    Commissions are earned based typically on sales and are not a part of the base salary. Your last months salary will included commissions earned to date and the notice period or severance will not have any commissions earned.
    @hongkongmusic - as much as you hate everything HK... Not all employers are arseholes... And not all employees are angels. But you are right in pointing the OP to the labour department and in particular the Labour Tribunal for binding dispute resolution.


  5. #5
    Quote Originally Posted by hongkongmusic:
    In Hong Kong, they'll try everything. They don't care.

    Go here:

    https://www.labour.gov.hk/eng/legislat/content2.htm
    I read the entire employer ordinance but it is still very unclear on some parts... Especially as my employer is not letting me go on the spot because they are extending a garden leave to me. I think it is a rather common "trick" used by employers even though I am not really sure how this practically benefits them.

    Quote Originally Posted by shri:
    Commissions are earned based typically on sales and are not a part of the base salary. Your last months salary will included commissions earned to date and the notice period or severance will not have any commissions earned.
    @hongkongmusic - as much as you hate everything HK... Not all employers are arseholes... And not all employees are angels. But you are right in pointing the OP to the labour department and in particular the Labour Tribunal for binding dispute resolution.
    Thanks for this shri. I did the maths using the last-month base salary to calculate the 1-month notice period payment alongside the 20 unused leaves and I fall pretty close to the sum my employer gave me. To calculate the days off, they used 20 * (last month base salary'/30) so technically they use days off on weekends and public holidays. I am not sure this is legal considering they are extending my employment and I am technically still employed by the company until end of January..

  6. #6

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    May be extending, but if it's gardening leave then no sales would be attributed to you as you are technically not working? Or am I misreading this?


  7. #7

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    About paid working days. You get paid the same per month whether there are 4 weekends or 5, 0 public holidays or 6? If that's the case then ... Holidays are accounted for as paid days of rest...

    Usual formula is (monthly salary / 30) * days .. you can nit pick about this but it is in my opinion a generally accepted payment rate.


  8. #8
    Quote Originally Posted by shri:
    May be extending, but if it's gardening leave then no sales would be attributed to you as you are technically not working? Or am I misreading this?
    Quote Originally Posted by shri:
    About paid working days. You get paid the same per month whether there are 4 weekends or 5, 0 public holidays or 6? If that's the case then ... Holidays are accounted for as paid days of rest...

    Usual formula is (monthly salary / 30) * days .. you can nit pick about this but it is in my opinion a generally accepted payment rate.
    This is true but as I am still technically employed hence I should not have to use days off on public holidays or weekends?

    My assumption is that the formula (monthly salary / 30) * days would apply to calculate the unused leave balance if my employment and termination dates were the same. However as per the letter they sent me this is a garden leave and even though I am terminated on Nov 28, the last employment date stated in their letter is currently 17 January 2023 (1 month notice period + 20 days off).

    I do not think they can use these 20 days on weekends and public holidays as I am technically still employed and a normal employee would not do this. Therefore, the last date should rather be in February?

  9. #9

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    (Salary / 30) * 20 days for unused leave compensation.

    Am I getting that wrong?

    PKS_2000 likes this.

  10. #10

    The way I understand it the employer had two options with this garden leave route but they seemed to have selected option 2:

    1) Terminate me on 28 Nov. Set the last employment date to 28 Dec. Pay this 1-month notice and settle the unused leave balance using the monthly salary / 30 days formula

    2) Terminate me on 28 Nov. Set the last employment date to 17 Jan (by using the unused leave including on weekends and public holidays). Pay 1 month notice + salary from 29 Nov to 17 Jan. No unused leave payments as they were all taken.

    As they seem to go with Option 2, I wonder how they can actually use days off on public holidays and weekends.


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