Daniel has been working at Company A for two and a half months. His employment contract contains a provision for a three-month probation period.
Last week, Daniel was seriously unwell and took four days' leave to recover. His boss told him, "As you are still working under probation, you are not entitled to any paid sick leave. I will deduct four days' salary because of your absence."
As Daniel's boss intends to extend his probation for another three months, Daniel is not happy and wants to quit his job. His employment contract does not contain any provisions for termination and his boss has told him, "If you want to resign, you have to give me either one month's notice or payment in lieu."
Is there any breach of the Employment Ordinance?
According to the Employment Ordinance, an employee who has been employed under a continuous contract can be entitled to paid sickness days. During the first 12 months, the employee can accumulate two paid sickness days for every completed month of employment. From the 13th month and thereafter, the employee can accumulate four paid sickness days for every completed month of employment and a maximum of 120 paid sickness days can be accumulated. As Daniel has been working for two and a half months, he has accumulated four paid sickness days. Therefore, when he took four consecutive days of leave due to his illness, which was supported by a medical certificate, he should have been entitled to a sickness allowance equivalent to four-fifths of his wages.
If there is no provision for termination in the employment contract and there is no oral agreement, notice is not required during the first month of probation, according to the Employment Ordinance. During the remaining months of probation, not less than seven days' notice is required if there is no prior agreement on the length of notice. As Daniel is still working under probation, he is only required to give seven days' notice if he wants to resign. His boss cannot request him to give one month's notice, as there is no such prior agreement.
|Q & A about your rights during probation|
|Q1 ||Is there any restriction on the length of a probation period?|
|A1 ||The Employment Ordinance does not have any provisions on the length of a probation period. A company can therefore determine the length of a probation period; this is usually three to six months, depending on the nature of the job or position. During the probation period, the employer has the opportunity to evaluate the employee's competence and performance, while the employee can take this opportunity to assess his or her work environment. If the employer is satisfied with the employee, the employer may shorten the probation period. The employer may also extend the probation period if a longer assessment period is necessary. However, this should be communicated to the employee before the probation period expires. |
|Q2 ||Can an employer terminate the employment contract of a pregnant member of staff during the probation period?|
|A2 ||According to the Employment Ordinance, it is prohibited to terminate the employment contract of a pregnant member of staff. However, if the pregnant member of staff is on probation, the employer may terminate the employment contract for reasons other than pregnancy during the probation period if such period is less than 12 weeks, or during the first 12 weeks of the probation period, if such period is more than 12 weeks.|
If the employer terminates the employment contract merely because the employee is pregnant, such act will constitute a breach of the Employment Ordinance as well as the Sex Discrimination Ordinance.
|Q3 ||Should the probation period be counted when calculating the pro rata end-of-year payment?|
|A3 ||The Employment Ordinance stipulates that, if an employee has been employed for not less than three months during the payment period, he or she is entitled to a pro rata end-of-year payment if:|
(1) the employment contract is terminated by the company for reasons other than summary dismissal during the payment period, or
(2) the employee is still employed after the expiry of the payment period.
However, when the three-month qualifying period is calculated, it must exclude the probation period or a period of three months, whichever is shorter. Nevertheless, when the employee has satisfied the requirement, the probation period should not be excluded from the employment period when calculating the pro rata end-of-year payment.