前社工控告前僱主不當解僱 Employment Disputes of a Social Worker

 前社工控告前僱主不當解僱

一名社工近日在勞資審裁處控告前僱主在他放病假期間將他解僱，要求前僱主發還欠薪、代通知金及年假補償等共31萬3千元。不過，前僱主指原告沒有向他們彼露原告曾因在內地性侵兒童被判監八年的犯罪紀錄，故意欺詐公司，因此前僱主只願意賠償港幣七千三百元。由於雙方未能成功和解，案件需要繼續排期審訊。裁判官認為原告即使有醫生紙，他仍然須獲僱主批准才可放假，所以原告未必可以憑病假期間被解僱為由控告前僱主。

根據香港法例第57章 《僱傭條例》第33條，只要僱主以連續性合約僱用僱員一個月或以上，僱員便可每月累積兩天有薪病假，之後每月可累積四天有薪病假，最多可累積至120天。除非因正當理由，如僱員犯下嚴重行為失當或詐騙，僱主不能在僱員放病假時解僱僱員。僱主違反此例可被罰款及向前僱員補發解僱代通知金。此案中，前僱主反駁稱原告沒有披露他的犯罪紀錄，因此僱主可以原告的不誠實行為解僱他而不用付上代通知金。由於雙方未能和解，法庭將排期繼續審訊。此案的僱主即使可以憑藉該社工的不誠實行為解僱他，但是僱主不在僱員放病假時解僱員工可避免法律爭議，是較為明智之舉。

Employment Disputes of a Social Worker

A social worker filed a case in the Labour Tribunal for the employer social welfare organization to fire him during his sick leave. He is claiming unpaid salaries and compensation for payment in lieu of notice totaling HK$313,000. However, his employer defended the claim by the fact that the plaintiff concealed his criminal record of sexual assault against children and was jailed for eight years ago. His employer, thus, claiming his dishonesty, only agrees to pay him HK$7,300 for the unpaid wages. The parties failed to obtain consensus and the judge held in favour of the employer. The judges said that the plaintiff was not entitled to his sick leave with medical certificates automatically but it requires the employer’s approval.

According to s.33 of the Employment Ordinance (Cap.57), employee under a continuous contract for a period of 1 month or above shall be entitled to accumulate two days of paid sick leaves each month in the first 12 months and accumulate 4 days each month thereafter for a maximum of 120 days. An employer shall not terminate the employment on any sickness day taken by the employee unless in accordance to the valid reasons such as misconducts or the employee is guilty of fraud. The employer will be further liable to a further sum for the wrongful termination as compensation payable to the dismissed employee. The employer in the case above argues that the plaintiff was dishonest about his criminal record, and thus, the company could terminate the employment contract without notice or payment in lieu. The parties failed to settle and the court adjourned for further hearings. Although the employer may fire the social worker due to his dishonesty, it would have been smarter if they fired him not during his paid sick leave to avoid disputes.