What constitutes unreasonable/unlawful dismissal?

An employer cannot dismiss an employee whenever they want to, as there are circumstances where dismissal is unreasonable or unlawful.

Unreasonable dismissal

The Employment Ordinance states 5 valid reasons for dismissal or variation of the terms of an employment relate to:

(a) the conduct of the employee;

(b) the capability or qualification to perform work;

(c) redundancy or other genuine operational requirements of the business;

(d) statutory requirements; or

(e) other substantial reasons.

If an employer dismisses an employee, who has been employed for at least 24 months, without a valid reason, then the dismissal would be unfair/ unreasonable.

Unlawful dismissal

The Employment ordinance lists 5 circumstances where the dismissal of an employee is unlawful. This includes the dismissal of :

1. A female employee who has been confirmed pregnant and has served a notice of pregnancy to her employer;
2. An employee who is on paid sick leave;
3. An employee because gave evidence or information in any proceedings or inquiry in connection with the enforcement of the Employment Ordinance, work accidents or breach of work safety legislation (engaged in whistle-blowing)
4. An employee for trade union membership and activities; or
5. An injured employee before having entered into an agreement with the employee for employee’s compensation or before the issue of a certificate of assessment.

Penalties

An employer will be liable to their employee if they unreasonably and/or unlawfully dismiss their employee, and they may be ordered by the Labour Tribunal for a reinstatement/ re-engagement order, terminal payments or compensation.

Key Takeaways

• An employer should give valid reasons to dismiss an employee
• An employer must prevent dismissing an employee in circumstances that would become illegal

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