A final look back at 2021 and its impact on labor law in Asia-Pacific
In these newsletters, we emphasise the importance, and even the necessity, of a comprehensive approach to the legal management of human resources in the Asia-Pacific, or Indo-Pacific. Whatever the name, it encompasses a coherent region stretching from India to Australia, where British-inspired common law prevails, adapted during national independence to the characteristics of each of the jurisdictions concerned.
When it comes to identifying the trends of 2021, faced with a human and legal landscape disrupted by the longer-than-anticipated presence of the pandemic virus, covering all these jurisdictions would be a task beyond the scope of a simple newsletter.
We have therefore chosen one of them, typically innovative and responsive to business developments: Hong Kong.
The problems employers have faced in Hong Kong are representative of those uncovered in other jurisdictions in our preferred region. Solutions may be different elsewhere, but not fundamentally so.
When legal and human relations departments need to find a compass in these uncertain times, what happened in Hong Kong provides a prime reference.
Newsletter No. 9 - December 2021
I - The Employer and Mandatory Vaccination
Under Hong Kong law, an employer may only give an order (such as one to be vaccinated) to an employee if the order is lawful and reasonable, but this right is recognized under these conditions.
The employer's right extends to the immediate dismissal for serious misconduct of an employee who refuses a valid order under Section 9(1) of the Employment Ordinance (Cap. 57).
The first criterion is easily satisfied, since no Hong Kong law prohibits vaccination, and the request cannot be "unlawful."
However, care must be taken to ensure that vaccination, if imposed, is imposed on all employees, to avoid the risk of discrimination, a practice punishable under Hong Kong law. The same applies to the distribution of incentives, such as bonuses or vacation days, for employees who accept vaccination.
The reasonableness criterion is more complex to analyse. Employees may have different personal positions on the matter, which is a subjective element. However, it is expected that the Hong Kong courts would apply an objective test, taking into account each employee's degree of exposure to risk. Pending case law, it is prudent to document each decision so that it can be justified later.
II - The Employer and the Obligation to Test
The issue is even more complex when it comes to delineating the limits of a simple test request by the employer.
According to the Occupational Safety and Health Ordinance (Cap. 509) (“OSHO”), employers are required, in accordance with general common law principles, to take all reasonably available measures to ensure the safety and health of their employees in the workplace. Conversely, employees must cooperate with their employer to this end. However, how this will be interpreted in the context of a pandemic, particularly in the event of employee refusal, remains to be defined by case law.
It should be noted that test results may only be retained by the employer with extreme caution, in accordance with the Personal Data (Privacy) Ordinance (Cap. 486).
III - Direct Hiring for Remote Work
With the pandemic and the widespread adoption of remote work, many employers have engaged in direct hiring through this method. Generally, this is for intellectual tasks, such as web development, but from a legal perspective, this form of employment is no different from a more down-to-earth model: that of drivers based on the so-called "Uber" model.
What will be the status of these new types of employees? It is still difficult to predict.
In Hong Kong, the courts ruled in favour of drivers, recognising their status as employees in the 2007 Court of Final Appeal decision in Poon Chau Nam v Yim Siu Cheung.
Conversely, in Australia, the Fair Work Commission denied drivers this status in a 2020 decision in Amita Gupta v Portier Pacific & UberAustralia Pty Ltd.
The situation of intellectual workers recruited without a required, or even authorized, physical presence at a workplace therefore remains uncertain.
IV - Medical Examination
In Hong Kong, employers may require a pre-employment medical examination and refuse employment if the candidate refuses to undergo it, provided they comply with the conditions set out in the Disability Discrimination Ordinance and the Personal Data (Privacy) Ordinance.
How this right will adapt to applicants, given their vaccination choice and their infection status, remains to be determined. In the meantime, formal and substantive precautions must be created ex nihilo by the employer, on its own initiative, to protect itself from potential liability claims.
V - Dismissal during sick leave
According to the Employment Ordinance (Cap. 57), except in cases of dismissal for serious misconduct, an employer may not dismiss an employee on sick leave, except during periods of unpaid sick leave where the contractual notice period is sufficient.
Will a condition of "long COVID" be considered to fall within this latter category, or will the courts develop rules specific to the pandemic?
This should be considered in light of the general principle in Hong Kong law (unlike other common law jurisdictions in Asia such as Malaysia) that an employer may terminate an employment contract without giving any reason, with compliance with the contractual notice period being sufficient to establish the validity of the dismissal. This principle was reaffirmed again recently in 2021 by the Court of First Instance in its decision in Lam Siu Wai v. Equal Opportunities Commission.
VI - The Employee's Availability Outside the Workplace and Its Limits
The employee's availability to respond to the employer's questions and requests will have to be assessed by adapting legal rules developed before the pandemic or independently of it.
For example, in a 2021 decision in Breton Jean v 香港丽翔公务航空有限公司 (HK Bellawings Jet Limited), the Hong Kong District Court held that an employee could not be dismissed for failing to answer an employer's call during a period of leave.
VIII - Refusal to Return to Work
As stated above, employers must comply with OSHO and take measures of their own volition to ensure the safety and health of employees, including, in this case, the employee's reintegration after a period of absence, taking into account, where appropriate, the employee's impairment. Which may be their intellectual capacities and mental state, with legal doctrine predicting that Hong Kong courts will draw inspiration from the 2004 English case of Barber v. Somerset County Council.
VIII - Refusal to Return to Work
Returning to work, and not just in the workplace but to work itself, is being observed among a growing number of people.
An increasingly widespread practice is for candidates who have accepted a position to withdraw and wish to resume their freedom after signing all the documentation formalising their new employment. The employer's recourse is then often limited, even if the employment contract or letter of appointment contains a notice clause, which may be considered at common law as a penalty clause that is automatically void.
However, in Law Ting Pong Secondary School v. Chen Wai Wah (2021), the Hong Kong Court of Appeal ordered the employee to pay his employer, who had been dismissed before he even started work, the equivalent of three months' salary for the contractual notice period.
This represents a real turning point in the case law of the Hong Kong courts, which until now considered such a clause void as constituting a penalty if its real purpose was to deter the employee rather than to calculate a compensation amount in advance. With the aforementioned decision, Hong Kong has adopted the UK Supreme Court's "modern" doctrine in Cavendish Square Holdings BV v Talal El Makdessi [2016] AC 1172, according to which a clause is a penalty only if it is disproportionate to the interests of the party it is intended to protect.
Hong Kong, like other common law jurisdictions in Asia-Pacific, is seeking legal solutions adapted to the new context, drawing on its general principles, especially that of "reasonableness." Its development should therefore be closely monitored because it will guide or at least reveal the state of the law in the entire geographical area in 2022 and beyond.
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The content above is purely for informational purposes, relating to a selected overview of legislative, regulatory and case law developments in the relevant geographical area, which is not and does not claim to be exhaustive.
It does not constitute legal advice in relation to any particular case and should not be regarded as such. A more detailed doctrinal study on any of the topics mentioned may be requested.
Philippe Girard-Foley is a Registered Foreign Lawyer accredited by the Supreme Court of Singapore before the Singapore International Commercial Court – Certificate of Full Registration under Section 36P Legal Profession Act (Chapter 61).