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Insufficient Notice period and threat to sue while abroad - what should I do?

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  1. #1

    Join Date
    Oct 2018
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    Exclamation Insufficient Notice period and threat to sue while abroad - what should I do?

    Hi there, I'm in a bit of a messy situation now.

    I worked at a learning institution in Hong Kong, to give a little background about the company it is a international franchise with stations in many countries. It is a small business here, staff ranges from 4 workers and 2 directors, and I've only ever heard that they had 7 maximum. It's a terrible job, long hours and unprofessional work environment ( The director talks badly of coworkers to others and creates a negative environment ). Employees are overworked, and underpaid and the time schedule is demanding.

    I worked there a little bit ago, for about 3 months and signed a contract with a notice period of 6 months of payment of salary in lieu of notice. I do understand I shouldn't have signed a contract without the commitment to stay, however was offered a 1 off opportunity to pursue my studies. In turn I made the decision to go abroad to continue my education as I am still quite young. I am below 20 years old and naive to the realities of the work life in Hong Kong and blindly signed the contract. In hindsight I should have negotiated the contract from the start, or not have signed it at all.

    Regrettably, I am in a situation where my last employer is now threatening to sue me if I do not pay. I worked for 3 months and my employer is demanding 6 months pay! I had informed my employer I would be leaving around 3-4 weeks into the job, and handed in a resignation 2 months later. Now realising how I should have done that earlier, my employer never acknowledge the verbal communication and didn't count the 1 month of notice.

    I know I signed a contract, however have felt that this is unfair treatment and that the 6 months label on the contract may be a tactic the business is using to force people to work there. Previous and current staff have complained about how they only stayed because of the contract, and all have handed in their resignations to only wait 6 months and work the job they hate. At the start of the job they don't give you a realistic view of the workload, and once you realise what the job is actually like the 2 week probation is up and you are bound by contract. I am also peeved about having to pay the money when 1) I provided 4-5 weeks preparatory work to the new employee, provided training even when it was not stated in my contract and even moved my last day of work to help the new employee train. Another reason is 2) another employee was in a similar situation, they signed the contract but soon realised that the job was not worth the money and opted out. He handed in his resignation and could leave after working for free for his last two months. ( In total 4 months work and 2 month notice ). I brought this up with my employer and said that the contract could be nullified by unfair treatment by employer with the labour department, but this didn't seem to stick. And 3) I believe he is being unfair to me and not treating my coworkers and I equally.

    The last contact with my employer was when he took my last months pay ( so technically I only got paid for 2 months and he's demanding 6 months pay ) and asked me to sign acknowledging, he said that whether the " shareholders " choose to sue me will be up to them, but I know he's full of it. I feel that he blames the companies losses on me, but it all leads back to being understaffed as other coworkers left when I did too ( with 3 having given notice, and 1 given better treatment) and the job ended up having the two bosses there and 2 coworkers left, no one else wanted to join.

    I had contact with my employer over a communications app, however flew abroad and deleted it ( Not to cut off communication, but because it was redundant ) and over email ( however blocked their email because I didn't want any future contact ) but the threat of being sued still lingers.

    I do not have this kind of money, and am studying a course that is too challenging and time consuming to work a part time job. My family would never pay this money, and may even drop me out of school if they find out so I cannot tell them. So I am stuck. I am currently abroad, can't afford to fly back.

    I am worried about being sued, and if I ever returned to Hong Kong they would arrest me on the spot ( dependent for a few more years ), I am afraid of pursuing a permanent residence status now as I only have 2 years to go ), I am also afraid of them somehow finding where I went and getting me deported from the country and overall losing my education. Is this possible? Are these fears actually rational for the sum I owe and would they really go to such lengths? If so, how do they do this?

    Any advise or tips on the process they would go through, the feasibility of them actually suing me, and how I should proceed? Is it possible to just not reply and not have any business with them? Should I just ignore it? ( The sum they are demanding is around 6.5USD) They also offered instalments which are 1k each for 6 1/2 months but this is impossible.

    Thanks and sorry for the long message... I really hope to hear tips soon as I'm getting anxious. And please don't tell me this is my own fault, I know it is and have repeatedly told myself this. I would just like to hear what other people think and any advice. Thanks


  2. #2

    Join Date
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    Seriously TL;DR ....

    - Did you have a probation period on your contract?
    - What is the total that you would owe to your employer - i.e. 6 months salary?

    Most of the content in your post is irrelevant to the case and just a cry for sympathy - i.e. you're crafting a post to lead people into giving you responses that you want to hear. Age, employer conduct, work environment, being overseas, permanent residency etc... irrelevant.

    Couple of pointers:

    - Employment contracts are civil contracts and breaking them is not a criminal offense

    - If the total due is over $50K HKD, it will have to filed in a district court and the cost to the employer will be a significant portion.


  3. #3

    Join Date
    Feb 2005
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    Manchester, UK
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    Ignore them and let them chase you for the money LOL its all a threat to get you pay, they wont waste time and money on lawyers to get you to pay them back especially if your leaving town to go abroad for studies.

    Oh and you wont get arrested or blocked from coming back into HK as its civil case.

    MABinPengChau, shri and spode like this.

  4. #4

    Join Date
    Sep 2013
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    190

    Ok. So here is my blunt observation

    1. you are a grown adult (at least under the law) - and if you did not want to live up to your obligations under the contract, you should have thought hard about signing it
    2. you now want to squirm out of your contract and not give/pay the 6 month notice which is what you signed up for. think about it - what if you employer decided to terminate you and decide to only pay 1 month (instead of the requisite 6 months?)

    having said that, from what i can tell, you probably owe them 4 months of notice in lieu (i.e. let us take the generous approach and you informed them 2-3 weeks into your contract). you have paid 1 month (by withheld pay), so maybe another 3 months.

    practically speaking, just ignore them and see if they file suit on you. And you ask if it is easy? Yes it is. To file suite in Labour Tribunal is not a big deal. And not expensive.

    Do they have your address - it is possible for your to delay service though if they are determined, they will find a way). It is not a big sum of money they are claiming from you in the big scheme of things (though they may want to do so if they are vindictive and / or to make an example).

    https://www.judiciary.hk/en/crt_serv...l/labour.htm#2

    US$6k (or maybe US$4.5k if you dispute the notice) to you is also not a big sum of money in the grand scheme of things - you are young (though immature) and you should be able to make it back in your lifetime.

    if they file suit on you somehow, you should just pay or negotiate a settlement. you can probably dispute your notice period (and when notice was given), but that is really about it when it comes to the law.

    shri and spode like this.

  5. #5

    Join Date
    Feb 2011
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    Hong Kong
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    6,317

    Firstly I hope you learned something from this. Like reading a contract before signing it. I do not feel bad for you and you are playing the victim. You leaving uproots their business and causes losses, doesn't matter if the company is disfunctional, that is up to you to figure out in the interview process and before joining.

    Yes they can easily sue you via labour tribunal and win. @shri, There is no limit on how much they can sue for (this case follows labour tribunal -- no monetary caps -- which is cheap and no lawyers are allowed in the court -- albeit many employers hire lawyers to draft the complaint/response). You will have an outstanding liability. But on the other hand, your employer is not legally allowed to not pay your wages, it sounds like they withheld your last month's pay? You could file a complaint against them as well. Many directors have been put in jail for 14-30 days for doing this and then end up with a criminal record. It's up to you to file a complaint with the labour department and follow through insisting that they investigate the late/unpaid wages.

    You'll both lose, but at least you would have hit them back. I would caution on this too as then the labour department would have your address and phone number. But if it goes to court I would also argue that too.

    If you had a probation period, you could have resigned within the first 30 days and not owe any money, per employment ordinance rules.

    You could choose to ignore it and hope it never comes back. Don't add fuel to the fire. Keep it quiet and move on.

    It sounds like you are living in HK with your family and found a way out and left. Kind of does stupid, if the company has your address they might cause problems or annoyance to your family. To Western people, they can easily ignore but to Asians, they don't take kind to being bothered. Cultural differences.

    When in doubt, call 1823 the city hotline 24 hours a day for answers.


  6. #6

    Join Date
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    Yes they can easily sue you via labour tribunal and win. @shri, There is no limit on how much they can sue for (this case follows labour tribunal -- no monetary caps -- which is cheap and no lawyers are allowed in the court -- albeit many employers hire lawyers to draft the complaint/response).
    Forgot about the Labour Tribunal route.

    Anyways, the key here is - did they have a probation clause and what the amount owed is.

  7. #7

    Join Date
    Sep 2013
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    190
    Original Post Deleted
    lol really? so what would you say when an employer wants to terminate you, and doesn't want to pay your requisite notice period? or if the employer decides that the monthly salary is not sacrosanct and changes it at will... Works both ways doesn't it! Think about the BA HKG staff who are being layed off - i'm sure they would want a long notice period - 6 months, 12 months! The longer the better.

    Btw, most people don't pay up the notice period but serve it out. the only reason why people pay is that your new employer desperately wants you to start ASAP and will buy out the notice period.

    So this is how worst case it plays out

    1. Employer files at Labour Tribunal
    2. Depending on whether there is a determination of notice being served, Employer can get an in-absentia judgement from Labour Tribunal in their favour
    3. Now it potentially gets fun:
    a. Employer gets baliffs to come to your place to seize OPs possession, or
    b. Employer goes file a writ of bankruptcy (this costs money, but nothing stopping them from being vindictive if they are really so evil)

    So sure, I would hope that the issue would goes away, including writing to the employer to give them the impression it is not worth chasing OP down.

    But if it really gets legal, that is the last thing you should advise OP to do. Legal problems don't just magically go away.

    Anyway OP's concerns are
    1. Will they get sued?
    2. What are the consequences of being sued?

    I'm afraid we can't answer if they will get sued. Only the employer knows that.

    But now, as someone mentioned up thread, think the Employer has committed a Breach by illegally witholding wages. That could be your stick / ammunition in this dispute. THIS IS YOUR LEVERAGE (caveat with is this a witholding for IRD purposes for employee leaving HK- if you are a non-perm HKID you do need to get some Letter of Release or employer will withhold 1 month salary)
    Last edited by ermen; 03-10-2018 at 03:55 PM.
    shri likes this.

  8. #8

    Join Date
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    Original Post Deleted
    Then don't sign that contract and don't work for those companies. Save yourself the headache, there are plenty of good companies to work for. Isn't that fair?

  9. #9

    Join Date
    May 2006
    Posts
    457

    I'm not trying to pry, but what was your visa status? If you were technically not eligible to work, you could argue the contract was invalid.

    Was your probably really only 2 weeks? If you notified them verbally that you were resigning, that could count towards your notice period.

    A number of people have already outlined the scenarios that could happen.

    You could try to claim "ill-treatment", but would need to provide evidence other than them being "not nice"
    https://www.labour.gov.hk/eng/faq/cap57d_whole.htm#q2


  10. #10

    Join Date
    Oct 2018
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    10
    Quote Originally Posted by ermen:
    2. you now want to squirm out of your contract and not give/pay the 6 month notice which is what you signed up for. think about it - what if you employer decided to terminate you and decide to only pay 1 month (instead of the requisite 6 months?).
    Okay so I first want to clarify that it's not that I don't want to pay, it's just that I am unable to pay. I do not have any money nor a current job where I am able to work. They took all the money I saved, and my last month and a weeks pay. Only money I had during that period is the little I managed to save. I tried seeing if I could sell some of my things, but had to leave them back in hk.

    I do agree with the 6 month notice period, but I thought this was bull with this company because they let another employee leave early without any consequence and are forcing me to pay.

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