Wrongful Dismissal Claim Letter (Hong Kong)

Wrongful dismissal in Hong Kong arises when an employer terminates an employee’s employment in breach of the Employment Ordinance (Cap. 57) or the terms of the employment contract. The primary statutory framework is Part VIA of Cap. 57, which protects employees against dismissal or variation of employment terms in certain specified circumstances. Section 32B of Cap. 57 prohibits dismissal where the reason — or principal reason — is that the employee: (a) is pregnant; (b) is on maternity leave; (c) is on paternity leave; (d) has given evidence or provided information in proceedings under Cap. 57 or related ordinances; (e) has made a complaint to the Commissioner for Labour; (f) is a trade union member exercising union rights under the Employment and Labour Relations Ordinance (Cap. 552); (g) is on a jury; (h) has applied for sick leave; or (i) has been injured at work and the employer’s liability has not been determined. Dismissal for any of these reasons is deemed wrongful regardless of notice given. Beyond Section 32B, wrongful dismissal also arises where: the employer dismisses without giving the contractual or statutory notice period under Section 7 (minimum seven days for less than one month’s service, or the contractual period); the employer fabricates a summary dismissal ground to avoid paying notice pay; the employer forces constructive dismissal by making working conditions intolerable; or the employer breaches the implied term of mutual trust and confidence, entitling the employee to treat the contract as repudiated.

Remedies for wrongful dismissal in Hong Kong are available through the Labour Tribunal under the Labour Tribunal Ordinance (Cap. 25) and, for common law claims, through the District Court or Court of First Instance. Under Section 32P of Cap. 57, where dismissal is found to be wrongful under Section 32B, the Labour Tribunal or court may order: reinstatement — requiring the employer to re-engage the employee in the same or a comparable position on terms no less favourable; or re-engagement — placing the employee in a comparable position, where reinstatement is not practicable. Where reinstatement or re-engagement is not ordered or is not complied with, the Tribunal may award a terminal payment comprising: (a) a sum equivalent to the greater of HK$50,000 or two months’ wages; plus (b) all outstanding statutory entitlements — notice pay, annual leave pay, long service or severance payment, and any other outstanding wages. These terminal payments are in addition to any other damages awarded. For wrongful dismissal at common law — where the employer dismissed without notice in breach of contract — the employee is entitled to damages representing the wages that would have been earned during the notice period. The court will not deduct tax from this award, as confirmed by the Court of Final Appeal in Fong Man Tung v Commissioner of Police.

Time limits for wrongful dismissal claims in Hong Kong depend on the forum and the basis of the claim. For Labour Tribunal claims under the Labour Tribunal Ordinance (Cap. 25), the general limitation period applying to contractual claims is six years under the Limitation Ordinance (Cap. 347). However, the Labour Department strongly advises filing within 12 months of dismissal to preserve evidence and witness testimony. Form 1 (Claim Form) must be filed at the Labour Tribunal Registry, 3rd Floor, High Court Building, 38 Queensway, Hong Kong. For statutory wrongful dismissal claims under Section 32B of Cap. 57 — involving dismissal for prohibited reasons such as pregnancy, maternity, paternity, injury at work, or union activity — the claim must be brought within six years of the dismissal, but prompt action is strongly advised given the evidentiary requirements. For discrimination-based wrongful dismissal claims, different limitation periods apply: claims under the Sex Discrimination Ordinance (Cap. 480), Disability Discrimination Ordinance (Cap. 487), Race Discrimination Ordinance (Cap. 602), or Family Status Discrimination Ordinance (Cap. 527) must generally be brought within 24 months of the act of discrimination in the District Court. The Equal Opportunities Commission (EOC) conciliation service is available and should be approached before commencing court proceedings.

Proving wrongful dismissal under Hong Kong’s Employment Ordinance (Cap. 57) requires the employee to establish that the dismissal falls within one of the prohibited categories under Section 32B or constitutes a breach of the employment contract. Burden of proof under Section 32U of Cap. 57: once the employee establishes that a dismissal occurred and that the employee was in a category protected under Section 32B (e.g. pregnant, on sick leave, or injured at work), the burden shifts to the employer to prove that the reason for dismissal was not a prohibited reason. This reversed burden of proof provides significant procedural advantage to the employee. Key evidence includes: the employment contract (to establish notice entitlements and the contractual basis of the claim); termination letter or notice of dismissal; payslips for the six months preceding dismissal; medical certificates (for sick leave or pregnancy-related claims); written communications between the employee and employer around the time of dismissal; witness statements from colleagues who observed the circumstances of dismissal or the employer’s conduct; and records of any complaint made to the Labour Department or ICAC before dismissal (supporting a retaliation argument).

Settlement before Labour Tribunal proceedings is both common and encouraged in Hong Kong. The Labour Department’s Labour Relations Division provides a free conciliation service under Section 61 of the Employment Ordinance (Cap. 57) that resolves approximately 70% of employment disputes without formal hearings. To initiate conciliation, the dismissed employee contacts any Regional Employment Claims Centre — located in Wan Chai, Kwun Tong, and Tuen Mun — or calls 2717 1771. A conciliation officer contacts both parties and facilitates negotiation. Sessions are conducted in Cantonese (with Mandarin and English interpretation available) and are confidential. Neither party’s statements during conciliation are admissible as evidence in subsequent tribunal proceedings. If conciliation produces agreement, both parties sign a settlement agreement in the presence of the conciliation officer. Under Section 70 of Cap. 57, a settlement made before a conciliation officer binds both parties and is enforceable as a court judgment. The settlement should record the full payment amount, the payment timeline, whether any reference letter will be provided, and confidentiality terms. For higher-value claims — typically involving senior executives with total compensation packages exceeding HK$1 million — private mediation through the Hong Kong Mediation Centre or the Hong Kong International Arbitration Centre (HKIAC) may be preferable.

Wrongful dismissal and constructive dismissal are distinct legal concepts under Hong Kong employment law, though both may give rise to claims at the Labour Tribunal under the Labour Tribunal Ordinance (Cap. 25) or in the courts. Wrongful dismissal occurs where the employer explicitly terminates the employment contract — by serving a dismissal letter, notice, or by summary termination — in breach of either the Employment Ordinance (Cap. 57) or the employment contract. The breach may be: failure to give contractual or statutory notice; dismissal for a prohibited reason under Section 32B; or fabricating a ground for summary dismissal (Section 9 of Cap. 57 permits summary dismissal only for wilful disobedience of a lawful and reasonable order, misconduct inconsistent with the employment contract, fraud or dishonesty, or habitual neglect of duties). Constructive dismissal is the employee’s resignation in response to a fundamental breach of the employment contract by the employer. The employer does not formally dismiss — instead, the employer’s conduct makes continued employment untenable. Examples include: unilateral reduction of wages or benefits without consent; unilateral demotion to a significantly inferior role; systematic harassment or bullying; transfer to a role wholly outside the employee’s job description; or destruction of the mutual trust and confidence that underpins the employment relationship (the implied term of mutual trust and confidence recognised in Hong Kong following Malik v Bank of Credit and Commerce International SA [1998] AC 20).

Foreign nationals working in Hong Kong are fully protected by the Employment Ordinance (Cap. 57) in the same way as Hong Kong permanent residents, provided the employment contract is governed by Hong Kong law and the employee works in Hong Kong. Section 3 of Cap. 57 applies the Ordinance to any employee employed under a contract of employment who works in Hong Kong. Nationality and visa status do not affect eligibility — expatriates working on Employment Visas under the Immigration Ordinance (Cap. 115), Overseas Domestic Helpers, professionals on work visas, and locally engaged foreign staff all fall within the scope of Cap. 57. For foreign nationals on Employment Visas, wrongful dismissal has an immigration dimension. Under the Immigration Ordinance (Cap. 115), an Employment Visa is granted specifically for employment with the sponsoring employer. Dismissal terminates the visa sponsorship — the foreign national typically has a limited period (notified by the Immigration Department) to either find a new sponsor or depart Hong Kong. A Wrongful Dismissal Claim Letter should be sent immediately upon dismissal, and immigration advice sought simultaneously. Overseas Domestic Helpers (OFWs from the Philippines, Indonesia, and other countries) are covered by a specific standard employment contract approved by the Immigration Department and the Labour Department.