Hong Kong Ordinances

EMPLOYMENT ORDINANCE - SECT 31S

General exclusions from right to long service payment by reason of dismissal

(Past version on 30/06/1997).

(1) An employee shall not be entitled to a long service payment by reason of
dismissal where his employer, being so entitled by reason of the employee's
conduct, terminates his contract of employment without notice or payment in
lieu in accordance with section 9. (Amended 51 of 2000 s. 5)

(2) An employee shall not be entitled to a long service payment by reason of
dismissal where, having been given notice of the termination of his
contract of employment by his employer in accordance with section 6, he leaves
the service of his employer before the expiration of that notice unless he so
leaves-

   (a)  with the prior consent of the employer; or

   (b)  after having made a payment in lieu to the employer in accordance with
        section 7. (Replaced 75 of 1997 s. 3)

(3) Subject to subsection (6), an employee employed under a contract for a
fixed term shall not be entitled to a long service payment where he is taken
to be dismissed by his employer under section 31T(1)(b) if, not less than 7
days before the relevant date, the employer has offered to renew his
contract of employment, or to re-engage him under a new contract, so that-

   (a)  the provisions of the contract as renewed, or of the new contract, as
        the case may be, as to the capacity and place in which he would be
        employed, and as to the other terms and conditions of his employment,
        would not differ from the corresponding provisions of the contract as
        in force immediately before his dismissal; and

   (b)  the renewal or re-engagement would take effect on or before the
        relevant date, and the employee has unreasonably refused that offer.
        (Added 75 of 1997 s. 3)

(4) Subject to subsection (6), an employee employed under a contract for a
fixed term shall not be entitled to a long service payment where he is taken
to be dismissed by his employer under section 31T(1)(b) if, not less than 7
days before the relevant date, the employer has made to him an offer in
writing to renew his contract of employment, or to re-engage him under a new
contract, so that in accordance with the particulars specified in the offer
the provisions of the contract as renewed, or of the new contract, as the case
may be, as to the capacity and place in which he would be employed, and as to
the other terms and conditions of his employment, would differ, wholly or in
part, from the corresponding provisions of the contract as in force
immediately before his dismissal, but-

   (a)  the offer constitutes an offer of suitable employment in relation to
        the employee;

   (b)  the offer constitutes an offer of employment no less favourable to the
        employee than hitherto; and

   (c)  the renewal or re-engagement would take effect on or before the
        relevant date, and the employee has unreasonably refused that offer.
        (Added 75 of 1997 s. 3)

(5) Where the relevant date falls on a rest day or holiday, the references in
subsections (3)(b) and (4)(c) to the relevant date shall be construed as
references to the next day after that rest day or holiday. (Added 75 of 1997
s. 3)

(6) Without affecting the application of section 31R(1)(a)(ii) and

   (b)  and (2)(b), where an employee employed under a contract for a fixed
        term, on or before the day on which the contract for a fixed term
        expires, refuses an offer of any of the descriptions mentioned in
        subsection (3) or

(4)-

   (a)  the employee is entitled to terminate that contract under
        section 31R(1)(a)(ii) or (2)(b) as appropriate, that expiration shall
        be regarded as termination of contract by the employee under section 
        31R (1)(a)(ii) or (2)(b) for the purposes of the application of this
        Part; or

   (b)  the employee is entitled to terminate that contract under
        section 31R(1)(b), that expiration shall be regarded as termination of
        contract by the employee under section 31R(1)(b) for the purposes of
        the application of this Part. (Added 75 of 1997 s. 3)