Jimmy had been working in a construction company as a technical officer for ten years. He knew that the company was planning to retrench some of the staff in his department. Last night he discovered that his date of joining the company was stated incorrectly on his Mandatory Provident Fund (MPF) Scheme membership certificate. He went to Stella, the personnel manager, to seek clarification this morning.
"Look at my MPF membership certificate! Why does it state that I joined this company in 1996 instead of 1992?" Jimmy asked.
"I only joined this company in 2001. I've checked your personnel file. The earliest employment record I can trace is a tax return, which was issued in 1996. I cannot locate any employment records before 1996 as they were lost," Stella replied.
"It's very unfair!" Jimmy said angrily.
"Do you have any documents to prove your length of service?" Stella asked.
"The previous personnel manager hadn't given me a copy of the employment contract," Jimmy answered bitterly. He was worried that should he be retrenched, he would receive less severance payment if the company only reckoned his length of service as six years.
What should Jimmy do to avoid this unhappy episode?
According to the Employment Ordinance, the employer is obliged to give a copy of the written employment contract to his employee for retention and reference if the contract is made in writing. If the contract is made orally, the employer shall provide the employee with written information on conditions of service including the wages, wage period and length of notice required to terminate the contract upon a written request from the employee.
Information on change
The employer shall inform the employee in an intelligible manner of any change, whenever there is a change in the conditions of service. If the particulars of the employee's wages are subject to change, the employer shall also inform his employee at the time of each payment of his wages, of the particulars of his wages for the wage period concerned. The employer should provide such information in writing upon a written request from the employee.
To safeguard his interest, an employee is advised to keep employment records as follows:
A) Records which substantiate employer-employee relationship, the wage rate and length of service:
1. employment contract, appointment letter, letter certifying employment relationship issued by the employer, staff identity card or staff registration record;
2. wage statements, wage receipts or notifications of adjustment of salary;
3. if wages are auto-paid into the employee's bank account: bankbooks or bank statements; if wages are paid by cheques: photocopies of cheques;
4. tax returns stating the annual remuneration of employee submitted by the employer or the employee;
5. termination letter or reference letter issued by the employer upon termination of service;
6. documents issued by the MPF trustee such as statement indicating the amount of contribution and the MPF membership certificate.
B) Records which substantiate the amount of wages and entitlements in arrears:
1. bounced cheque issued by the employer;
2. if the employee is daily-rated: records on the number of working days during the period when wages are in arrears;
3. if the employee is piece-rated: records on the number of assignments completed by the employee during the period when wages are in arrears;
4. if overtime pay is in arrears: records on overtime hours;
5. if holiday pay or sickness allowance have not been cleared: records on holidays taken, sick leave certificates issued by medical practitioner;
6. if commission is in arrears: supporting document indicating the amount of commission in arrears and detailed calculation.
... to substantiate claims
In case of wage dispute, the records kept by the employee can be presented as documentary evidence of his claims during conciliation meetings conducted by the Labour Department or at court hearings, which adjudicate on the claims. Besides, if the employer is unable to pay wages to his employee because of insolvency, the employee can present such records to the receiver or the liquidator as proof to substantiate his claims. If the employee wishes to apply for ex-gratia payment from the Protection of Wages on Insolvency Fund, he can submit the records to the Labour Department to substantiate his application.
Although Jimmy did not have a copy of his employment contract, he should check whether he had other employment records, such as appointment letter, tax returns or wage records, to substantiate his claim that he joined the company in 1992.
The above case only serves as an illustration of the provisions of the Employment Ordinance on keeping of employment records. The Employment Ordinance, however, remains the sole authority for the provisions explained above and in case of dispute, the final decision rests with the court.