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Is notice period legally binding?

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  1. #1

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    Is notice period legally binding?

    Hi

    I intend to hand in my resignation today. I am on 3 months notice but want to leave ASAP. Can they enforce it? My contract says that during my probationary period either party can give one months notice or payment in lieu, but after my probationary period then both parties are required to give 3 months notice.

    Can they make me stay if they want to?

    Thanks!


  2. #2

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    If a contract is legal binding, parts of it are too. You can usually paid your way out.


  3. #3

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    Yes they can. That is the essence of a contract.

    But as Claire says, you can usually negotiate your way out.

    If you are here on a visa, bear in mind that your employer will tell ImmD and IRD, and should withhold your last month's salary until given the all clear by IRD.


  4. #4

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    In the UK there are only parts that are legally binding and apparently they can not enforce the notice period. Just wondered if it was the same here.

    Hadn't really considered the visa issue... I am here with my boyfriend so I don't have a dependents visa. I know of people who have been living with partners who work but have never worked themselves and as long as they leave every 6 months at least they have been fine. Will that change after I've been in the 'system' as a visa holder?


  5. #5

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    Some people get away with living here for ages with visa runs, some don't. I'm not sure there's a pattern to it - you just have to rely on getting lucky with the Immigration officer processing you in each time.


  6. #6

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    The Employment law in Hong Kong favours the employer.

    In the case of a continuous contract of employment, the length of notice or the amount of wages in lieu of notice required, after the probation period, is the length of notice as per agreement, but not less than 7 days.

    An employee may terminate his employment contract without notice or payment of wages in lieu of notice if -

    (a) he reasonably fears physical danger by violence or disease;
    (b) he is subjected to ill-treatment by the employer; or
    (c) he has been employed for not less than 5 years and he is certified by a registered medical practitioner as being permanently unfit for the type of work he is engaged.

    Yes, you can do the tourist visa run every six months but it's very risky. The ImmD can refuse you entry into Hong Kong.


  7. #7

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    Quote Originally Posted by gertie:
    In the UK there are only parts that are legally binding and apparently they can not enforce the notice period. Just wondered if it was the same here.
    That's kind of weird... isn't the whole point of a contract is that anything contained in it is legally binding?

    Can you point out any examples?

  8. #8

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    Quote Originally Posted by gertie:
    Hi

    I intend to hand in my resignation today. I am on 3 months notice but want to leave ASAP. Can they enforce it? My contract says that during my probationary period either party can give one months notice or payment in lieu, but after my probationary period then both parties are required to give 3 months notice.

    Can they make me stay if they want to?

    Thanks!
    There are several things to consider as well as any contractual obligations.

    1. Talk to someone there first (boss preferably)

    You might be advised to speak to them before handing in the resignation notice to get their insights into what they will need to ensure a smooth transition and replacement. Don't surprise them and let them get annoyed and then start using the contract to force you to stay for 3 months. Talk with them, then hand in the notice would my advice.

    Most companies don't want people to stay if they don't want to be there so they will be flexible normally in transition dates (IF they can and it does not involve situations where students are involved). Most accommodate people who need to start new jobs also unless it is something like teaching or college instruction.

    Also, if there are bad relationships, then it does lead to people holding their employees to the letter of their agreements.

    2. Consider the Old Adage of Moving from Strength

    If you plan to look for work and are not in a most sought after industry/job situation, then this market is not the best for voluntary turnover unless other reasons are causing this. Most times it is better to wait until new positions arise and then resign. If the 3 months is the impediment, find out what the company's normal practice is as most jobs don't require that much notice irrespective of the contract.

    3. Consider the Value of Reference

    If you need a future reference from that organization, then consider whether it is good to try and bail on any contractual obligations if the organization's practices are to enforce these 3 month clauses and you wish to work again in Hong Kong where it is easier to reach old employers you might want to think of this.
    Last edited by Football16; 23-03-2009 at 07:10 PM. Reason: phone call.. forgot last part of sentence

  9. #9

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    Unlike in the US, UK, etc., employment contracts in HK can be written to favor employers. If you just can't stand to stay there another day, your employer cannot actually force you to show up at the office and work, but they can (if they for some reason pursue the issue) take you to court for damages and get an injunction to prevent you from working for another employer (in Hong Kong) for the notice period. If you have a particularly bad relationship with your employer, they can report you to immigration (tell them that you are in violation of your contract) which will make it harder to get a new employment visa.

    Best bet is to just talk to your employer and see if they will shorten the notice period. And, get their reply in writing. Good luck.

    Last edited by hello_there; 23-03-2009 at 07:04 PM.

  10. #10

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    Everything I see in this summary from the UK Government indicates that contractual notice periods are binding there as well. I've never seen any evidence to the contrary.


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