Resignation or Termination?

[krypton]

Ok, so I have been working for my company for a while. The contract was negotiated overseas and I am here on secondment. Recently the company decided to convert all foreign contracts to local ones. The new contract was inferior and I rejected it. So my question

1) Does this call for a resignation from me since I dont accept the new offer OR will the company terminate my employment since they can no longer offer the agreed contract and they unilaterally decided to amend the terms?

2) Which one would be better? Will termination in this situation equate to redundancy and hence entitle me to redundancy payments?

[Sue&Safia]

Hi
I work in HR and am also on assignment over here.

I strongly recommend you get a lawyer as this is a grey area. Depends on what your assignment contract says, how long it's for, what the terms are for return to home country, who owns your original contract plus who knows what other factors.

Also depends on how hard you want to fight it.

Good luck!

[Donut Waver]

Well for a start off, you're not being made redundant so you won't be entitled to any redundancy package. It is up to you to resign from your position if you aren't happy with the terms and conditions. You can try and negotiate with your employer but in the current economic climate, I wouldn't rate your chances highly.

Good luck.

[shri]

You might want to read this (section 4)...

Panel on Manpower (Minutes)24 Sep 98

It is old... but should still give you some guidance.

You do have some rights.

Under Common Law, an employee could deem any variation of contract terms which would substantially affect his interest such as wage reduction to be a constructive dismissal by the employer and lodge a claim for termination compensation.

Having said that, expat contracts could be a nightmare. I have no clue how overseas contracts would play out in HK.

[hullexile]

It would depend on which is your home country and the law there, whether you were employed by the company prior to the secondment, etc.

If for example, your home country is the UK and you were working for the company prior to the secondment then they would have to offer you the opportunity of returning to your old position or make a redundancy payment. Too many variables for people on this site to make a judgement.

[hello_there]

Well for a start off, you're not being made redundant so you won't be entitled to any redundancy package.

No. There are many circumstances where a material employment contract variation can be deemed a constructive termination if you do not agree to the new terms.

There are a lot of variables when dealing with this type of employment law situation and its difficult to comment further without knowing terms of the original contract and home country. In particular, was the secondment open ended or has it come to the end of its term or is the contract being converted to local before the end of a fixed term?

Generally a termination WITHOUT cause will equate to redundancy (in HK and UK), but there is often a dispute regarding what is "without cause" in HK and I've seen employers make up all sorts of bad reviews out here after the fact to create a for cause termination.

[krypton]

Thanks all for your insights.

To add a few details, I am not on project/assignment basis. I was hired by the same company overseas and moved to HK on secondment (with no period specified). There are no clauses for return home in the contract as it was deemed to be in HK forever.

Anyway, hope we can come to an agreement as they have called for another negotiation.

[MrMoo]

It sounds like they're changing your contract so you would be entitled to a redundancy payment if you did not agree. Resignation would only occur if you current contract is expiring or terminated upon your request.

Which one is better is a huge question for yourself. Are you a HK permanent resident for a start?

[krypton]

Thanks all for the comments. I finally decided to resign and end this peacefully.

[Football16]

I wouldn't be impulsive and resign as you suggest unless you have a better option to go to. If nothing else you want to be on their pay roll as long as possible to help you transition elsewhere.

Let them negotiate terms with you. It is good to get the ball back over to them and let them make you an offer. It doesn't have to be anything other than sound business as you have responsibilities no doubt and you are entitled to be treated fairly too.

I doubt you need a lawyer yet and if you did it is best to wait out their final offer before seeking legal advice.

While Shri and hello_there have correctly picked up on constructive dismissal as that it is essentially what they would be doing, unless HK courts are significantly more favourable to employees on this issue than say Canada, they can do practically anything these days before a judge will accept this argument these days. The other side of the issue is the amount of time, money and energy a person would be willing to put into this as courts are high risk places. Most simply would let it go and cut the best deal they could. I would never resign...make them fire me and take severance.