Sam was a financial consultant who worked in an investment company. Typhoon Signal No. 8 was hoisted on a Thursday and Sam was not required to return to work. Sam resumed duty on the following day and his supervisor, Mrs. Leung, came to him. "As you know, Sam, we have to submit our proposal to our client next week," Mrs. Leung said, "so let's finish it up this Sunday."
Sam, however, did not want to return to work on Sunday, which was his normal rest day, because he had to attend Parents' Day organized by his son's school. But Mrs. Leung demanded it, arguing: "You must come back because we have already lost a working day yesterday!"
Can Mrs. Leung force Sam to work on Sunday to compensate for the loss of a working day due to the hoisting of Typhoon Signal No. 8?
* It is unlawful for an employer to reduce his/her employee's entitlements to rest days or other holidays to compensate for the loss of working hours resulting from the hoisting of Typhoon Signal No. 8 or above.
* Under the Employment Ordin-ance, an employee, except young persons under the age of 18 employed in industrial undertakings, may work voluntarily on a rest day. However, an employer must not compel an employee to work on a rest day except in the event of a breakdown of machinery or plant or in any other unforeseen emergency. For any rest day on which the employee is required to work, the employer should substitute another rest day within 30 days after the original rest day.
* An employer who fails to grant rest days to his/her employees according to the law is liable to prosecution and, upon conviction, to a fine of $50,000. Mrs. Leung, therefore, should not compel Sam to work on Sunday to make up for the day lost as a result of the typhoon attack.
A guide to rest days
Eligibility for Rest Day
An employee employed under a continuous contract is entitled to not less than one rest day in every period of seven days.
Definition of a Rest Day
A rest day is defined as a continuous period of not less than 24 hours during which an employee is entitled to abstain from working for his employer.
The above case only serves as an illustration of the provisions of the Employment Ordinance on rest days. 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 work arrangements in times of Typhoons|
|Q1 ||There is no prior work arrangement in times of typhoon between the employer and employee. If Typhoon Signal No. 8 or above is hoisted before the commencement of the working hours, can the employer deduct from the wages of an employee who fails to return to work after the lowering of the typhoon signal?|
|A1 ||Generally speaking, employees should return to the workplace and resume duties as soon as practicable after the Typhoon Signal No. 8 is lowered. If an employee is absent from duty, according to section 32(2)(a) of the Employment Ordinance, the employer could deduct from his wages the amount proportionate to the period of absence. However, the employee might have encountered difficulties in reporting for duty immediately after the lowering of the typhoon signal as it is possible that heavy rain, road flood or landslide occurs in the district where the employee lives but not in the district of the workplace. Under such circumstances, an employer should adopt a considerate attitude towards the employee's reasons for absence. If the employee's reasons are valid, as a considerate employer, you should not make any wage deduction. An employer should immediately work out a satisfactory work arrangement with his/her employees for the benefit of both parties. |
|Q2 ||The prior work arrangement is that employees have to report for duty in times of Typhoon Signal No. 8 or above. The employee failed to report for duty for safety reasons but his explanation is not supported by evidence. Under such circumstances, could the employer take disciplinary action or summarily dismiss the employee?|
|A2 ||If the employee fails to report for duty for reasons of safety, the employer should not assume that the employee intends to take unauthorized leave. He should ascertain from the employee his circumstances and consider whether his explanation is reasonable before making any decision. The employer should not take disciplinary action or dismiss the employee lightly. Summary dismissal is a serious disciplinary action. It normally applies to cases where an employee has committed very serious misconduct or fails to improve himself after the employer's repeated warnings. If an employer summarily dismisses an employee solely because he has failed to report for duty or arrived late at work due to the hoisting of Typhoon Signal No. 8 on a single occasion, the employer may have difficulties in establishing his case. |
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Source : Labour Department