Rose is a human resources manager in a construction company. Due to the economic downturn and the slowdown in the construction business, the managing director of the company has announced a plan to retrench a number of staff and asked Rose to implement the retrenchment exercise. Having sent out the dismissal notices, Rose immediately received a letter from one of the retrenched staff, Cindy, who had been working under a continuous contract in the company for more than a year.
Cindy, in her letter to the company, disclosed that she was pregnant. Her announcement was supported by a medical certificate.
Can Rose dismiss Cindy immediately without taking note of her notice of pregnancy?
The Employment Ordinance stipulates that:
(1) A female employee employed under a continuous contract immediately before the commencement of her maternity leave and having given notice of the pregnancy to the employer is entitled to a continuous period of 10 weeks' maternity leave.
(2) An employer is prohibited from dismissing a pregnant employee from the date on which she is confirmed pregnant by a medical certificate to the date on which she is due to return to work upon the expiry of her maternity leave if the employee has been employed under a continuous contract and served a notice of pregnancy to the employer. Even if a pregnant employee is dismissed by her employer before she has served a notice of pregnancy, she may serve such notice immediately after being informed of her dismissal. Under such circumstances, her employer must withdraw the dismissal.
The employer is not prohibited from dismissing a pregnant employee under the following circumstances:
(1) the employee is summarily dismissed due to her serious misconduct;
(2) or where it has been expressly agreed that the employment is on probation, the employee is dismissed for reasons other than pregnancy during the probation period of not more than 12 weeks.
Except for the circumstances provided above, it is an offence for an employer to dismiss a pregnant employee. The employer is liable to prosecution and, on conviction, to a fine of $100,000. Besides, the employer is also required to pay the following sums of money to the dismissed employee within 7 days after the day of termination:
(1) Wages in lieu of notice;
(2) A further sum equivalent to one month's wages; and
(3) 10 weeks' maternity leave pay if, but for the dismissal, she would have been entitled to such payment. (An employee is eligible for maternity leave pay if she has been employed under a continuous contract for not less than 40 weeks immediately before the commencement of maternity leave.)
Hence, Rose should withdraw the notice of dismissal issued to Cindy.
The above case only serves as an illustration of the provisions of the Employment Ordinance on maternity protection. 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.
|Q & A on maternity leave |
|Q1 ||Under the Employment Ordinance, can an employee who worked less than 40 weeks immediately before the commencement of scheduled maternity leave get paid maternity leave? |
|A1 ||If the length of the employment service under a continuous contract is less than 40 weeks immediately before the commencement of scheduled maternity leave, the employee is eligible for 10 weeks' maternity leave without pay. |
|Q2 ||How is maternity leave pay calculated? When should it be paid? |
|A2 ||Maternity leave pay is equal to four-fifths of normal wages. It should be paid on the employee's usual pay day. |
|Q3 ||Is an employer required to pay a pregnant employee for absence due to attendance of medical examinations in relation to the pregnancy? |
|A3 ||Yes. When the employee is absent from work to attend medical examinations in relation to her pregnancy, post confinement medical treatment or miscarriage, any day on which she is absent shall be calculated as sick leave. She is entitled to a sickness allowance of four-fifths of the normal wages if she - |
(a) has accumulated the number of paid sickness days* taken; and
(b) the sick leave is supported by an appropriate medical certificate.
* For further information on the accumulation of paid sickness days, see the provisions of the Employment Ordinance on Sickness Allowance and Chapter 5 of "A Concise Guide to the Employment Ordinance".
|Q4 ||When can a pregnant employee start her maternity leave? |
|A4 ||With the agreement of her employer, a pregnant employee may decide to commence her maternity leave from 2 to 4 weeks before the expected date of confinement. If the employee does not decide on the date, or fails to secure her employer's agreement, the employee shall commence her maternity leave 4 weeks before the expected date of confinement. |
Maternity leave commences on the date of confinement if it occurs before the scheduled maternity leave.
| || |
| || |
Source : Labour Department