Patrick has been working in a hotel as a front-desk officer for four months. When he joined the hotel, his supervisor, Mr Chung, did not inform him about special work arrangements when typhoon signals or rainstorm warnings were issued. Patrick did not go to work this morning because a black rainstorm warning was issued. When he resumed work this afternoon, Mr Chung ordered him to come to his office.
"Patrick, why were you absent this morning? Do you know that your absence has affected our service for our clients?" Mr Chung asked.
"I didn't return to work because the black rainstorm warning was issued. The rain was so heavy that the streets were flooded," Patrick explained.
"What an excuse! Due to your absence, you are fired and no termination compensation will be given," Mr Chung said angrily.
"When I joined the hotel, you did not tell me that I needed to return to work when a black rainstorm warning was issued. I do not think this is my fault!" Patrick responded bitterly.
Should Patrick be summarily dismissed because he did not return to work when the black rainstorm warning was issued?
According to the Employment Ordinance, an employer may summarily dismiss an employee without notice or payment in lieu of notice if, in relation to his employment, the employee:
* willfully disobeys a lawful and reasonable order;
* is guilty of misconduct;
* is guilty of fraud or dishonesty; or
* is habitually neglectful in his duties.
* Summary dismissal is a serious disciplinary action. It only applies to cases where an employee has committed very serious misconduct or fails to improve himself after repeated warnings by his employer.
* Failure to report for duty due to genuine difficulties in adverse weather conditions does not constitute grounds for summary dismissal. Mr Chung should not dismiss Patrick lightly, simply because he was absent due to a black rainstorm warning.
Is there any way of avoiding the above unnecessary dispute?
Working out prior work arrangements for periods when there are typhoons and rainstorms will help resolve the problem. Depending on the requirements of different industries and jobs, employers are advised to make proper work arrangements promptly, in consultation with their employees. These should include:
* whether employees are required to report for duty when different types of typhoon signal or rainstorm warning are issued;
* whether employees will be released from work when a typhoon signal or rainstorm warning is issued during working hours and, if so, what the release arrangements are;
* the timing and arrangements regarding the resumption of work after the typhoon signal or rainstorm warning is cancelled, for staff who have not reported for duty during typhoons or rainstorms;
* the calculation of employees' wages and allowances if they are on duty, late or absent for work during typhoons and rainstorms; and
* special transport arrangements, if any, for employees who are required to report for duty during typhoons and rainstorms.
When working out the work arrangements, Mr Chung and Patrick can also refer to the code of practice in times of typhoons and rainstorms produced by the Labour Relations Promotion Unit of the Labour Department. The code can be downloaded from: http://www.lrpu.labour.gov.hk/publicat/rainstorm/index-e.htm
The above case only serves as an illustration of the provisions of the Employment Ordinance on the termination of contracts of employment. The Employment Ordinance, however, remains the sole authority for the provisions explained above and, in the event of a dispute, the final decision rests with the court.
| Q & A on rainstorm and typhoon warnings and summary dismissal |
| Q1 | If a black rainstorm or typhoon warning leads to dispute between employers and employees, where can they seek further assistance? | | A1 | Employers and employees can approach the branch offices of the Labour Relations Division of the Labour Department for assistance in the event of a labour dispute arising out of the provision of a black rainstorm or typhoon warning. They will provide conciliation services to the parties concerned.
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| Q2 | Will the Labour Tribunal force an employer to accept a reinstatement or re-engagement order? | | A2 | No. An order for reinstatement or re-engagement will only be made if both the employer and the employee agree to such an order being made. |
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