It is common for employers to have an internal disciplinary procedure to provide a speedy and fair process to address any wrongdoing in the workplace, and to determine the appropriate disciplinary sanction that should be taken against such wrongdoing.
In Hong Kong, there is no statutory disciplinary procedure which must be followed by an employer nor is there any legal requirement that a “fair” process be conducted prior to dismissal. Accordingly, any disciplinary procedure for handling employee misconduct or underperformance is often governed by the employment contract or the employee handbook (provided this has been expressly incorporated into the employment contract).
Despite the lack of a formal disciplinary framework in Hong Kong, there are some recommended practices that employers may choose to adopt.
- Preliminary investigation
An employer should first undertake an investigation into the nature and extent of any alleged misconduct. This investigation can include speaking to witnesses, reviewing correspondence and reviewing any company policies and procedures to assess whether there is cause for initiating a disciplinary process.
- Formal notification to employee and invitation to a disciplinary hearingHaving completed its preliminary investigation, an employer should:
a. formally inform the employee of the alleged misconduct by way of written correspondence;
b. present to the employee all the material information gathered from the investigation; and
c. invite him/her to a disciplinary hearing.
An employer should present all material information to the employee at this stage; withholding any information may result in the employee disputing the outcome of disciplinary hearing on the grounds that he or she was not properly informed of the allegations and was therefore unable to properly respond.
- Suspension (in very limited circumstances)
It is worth noting that an employer may only suspend an employee in very limited circumstances. These include suspension of an employee during an investigation which may involve serious misconduct, which if proven, justifies summary dismissal, or where the suspension is pending the outcome of any criminal proceedings. Anything falling short of these circumstances may give rise to a claim for constructive dismissal by the employee.
- Disciplinary hearing
At the disciplinary hearing, the employee should be given an opportunity to state his case, ask questions, present evidence, answer any allegations made and/or offer any clarifications. The employer should refrain from making any assumptions about the employee’s conduct which would affect the outcome of the hearing and consider all evidence objectively.
- Outcome of the disciplinary hearing
The outcome may be delivered in person or in writing. Any finding of wrongdoing should be properly supported by facts and evidence having taken into account the nature and seriousness of the offence(s). Further, the disciplinary sanction should be consistent with the employer’s previous treatment of employees in a similar position. Typical disciplinary sanctions taken by an employer includes the following, in order of increasing severity:
a. Verbal or informal warning;
b. Written or Formal warning;
c. Termination of employment (with notice, payment in lieu of notice or summary dismissal).
In circumstances where the employee’s conduct is so serious so that it amounts to an act of gross misconduct or where there are a series of acts of misconduct undermining the relationship of trust and confidence between the employer and employee, summary dismissal being termination without notice, may be justified. Circumstances capable of amounting to summary dismissal depend on the individual facts of each case but employers should be warned that where the conduct complained of is inadequate or unreasonable to justify summary dismissal, the termination will be regarded as wrongful and the relevant employee may bring a claim against his or her employer.
For further information on the disciplinary procedure in Hong Kong and other employment law related matters, please do not hesitate to contact our solicitors.
Andrea Randall, Partner
Tel +852 3405 7630
Joni Wong, Associate
Tel +852 3405 7616
All material contained in this article are provided for general information purposes only and should not be construed as legal, accounting, financial or tax advice or opinion on any specific facts or circumstances and should not be relied upon in that regard. Gall accepts no responsibility for any loss or damage arising directly or indirectly from action taken, or not taken, which may arise from reliance on information contained in this article. You are urged to seek legal advice concerning your own situation and any specific legal question that you may have. For employment law matters, please feel free to make enquiries with Andrea Randall (email@example.com / +852 3405 7688), Joni Wong (firstname.lastname@example.org / +852 3405 7616) or Wilson Cheung (email@example.com / +852 3405 7658)