legalupdate
Points to Note Regarding Termination
of Employment by Employees
by Nigel Francis and Winnie Wong
T
he recent recovery of the local
economy resulted in an increased
turnover of staff as employees
sought new opportunities. This article
focuses on issues relating to termination
of employment by an employee.
Employers should be aware of these
issues so that they may avoid unnecessary
disputes with their employees.
When an employee terminates his
employment, he is entitled to choose to
serve part of the notice period and to make
a payment in lieu of notice in respect of the
balance of the notice period. The employee
needs not make the decision immediately
but can opt to make a part payment in lieu
of notice at any point while serving out his
notice. The employee is not required to
obtain his employer’s consent to shorten
his notice period by making a payment in
lieu of notice in respect of the balance. The
employee is also entitled to include annual
leave to which he is due as part of the notice
period. These last two principles were
analysed in the judgment of Kao, Lee & Yip
(a firm) v Lau Wing and Tsui Wai Yu, FACV
7/2008, October 29, 2008.
Facts of Kao, Lee & Yip (a firm)
v Lau Wing and Tsui Wai Yu
Ms Lau and Ms Tsui were two junior
solicitors who had been with the law
firm Kao, Lee & Yip for one to two years
when they resigned. Both were engaged
on materially identical terms which were
set out in their respective employment
letters. Their respective employments
could be terminated by either the law firm
or themselves by giving three months’
notice.
Ms Lau and Ms Tsui each wrote to
the firm submitting their resignation on
August 19, 2005. As they were anxious
to bring their employment lawfully to an
end, they wrote to the firm indicating that
they wished to shorten the three-month
notice period “by way of payment in lieu
of notice for the period from September
20, 2005 to November 18, 2005 (both
dates inclusive)”. Noting that they were
subject to three months of termination
notice, this meant that they proposed to
attend work for the first month and make
a payment in lieu to cover the remaining
two months. Also on August 19, 2005,
they each wrote to the firm requesting the
firm to advise them of the exact amount
of the payment in lieu which they were
required to pay.
On the next day, the firm responded
and indicated that it would not accept
the two solicitors to make a payment
in lieu to cover the balance of their
notice period. Needless to say, the firm
did not reply to the letter asking it to
indicate how much the two solicitors
were required to pay as payment in lieu
of notice. Subsequently, Ms Lau and
Ms Tsui each wrote to the firm again
and enclosed checks for the payment
in lieu (in accordance with their own
calculations but stated that they would
immediately pay the shortfall in the
event of any error in the calculation).
The firm refused to accept the checks.
On September 19, 2005, which was their
last day of work, they re-submitted the
checks to the firm and the firm again
refused to accept them. Nevertheless,
they left the firm relying on the payment
in lieu they had tendered and the fact
that they had served out the first month
of their notice period.
The firm issued court proceedings
against Ms Lau and Ms Tsui. The firm
argued that they were not entitled to
end their employment unilaterally by
undertaking to make a payment in lieu
in respect of part of their notice period.
The firm was not successful at the High
Court proceedings. The firm appealed to
the Court of Appeal and the appeal was
dismissed. The firm then appealed to the
Court of Final Appeal, the judgment of
which is covered in this article, and the
appeal was again dismissed.
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legalupdate
The two issues which had to be
determined by the Court of Final Appeal
were: i) whether or not termination of
employment pursuant to section 7 of the
Employment Ordinance (EO) requires
the agreement of both the employer and
the employee; and ii) whether section
6(2A) of the EO operates to invalidate a
notice of termination where an employee
includes annual leave as part of the notice
period. The first issue related to both
Ms Lau and Ms Tsui. The second issue
only concerned Ms Lau.
First issue—Termination
under section 7 of the EO
It was not in dispute that Ms Lau and
Ms Tsui were relying on section 7(2) of
the EO to terminate their employment
contracts. In respect of the first issue,
the relevant provisions of the EO are as
follows:
Section 6
(1) “Subject to subsections (2), ...
either party to a contract of
employment may at any time
terminate the contract by giving to
the other party notice, orally or in
writing, of his intention to do so.
(2) The length of notice required
to terminate a contract of
employment shall be –
...
(c) in every other case, the agreed
period, but not less than seven
days in the case of a continuous
contract.”
Section 7
(1) “… either party to a contract
of employment may at any time
terminate the contract without
notice by agreeing to pay to the
other party a sum equal to the
amount of wages which would
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have accrued to the employee
during the period of notice
required by section 6.
(2) Either party to a contract of
employment, having given
proper notice in accordance
with section 6, may at any time
thereafter terminate the contract
by agreeing to pay to the other
party such proportion of the sum
referred to in subsection (1) as
is proportionate to the period
between the termination of the
contract and the time when the
notice given would have expired.”
Kao, Lee & Yip argued that the phrase
“agreeing to pay” in section 7(2) of the EO
meant that one party’s offer to terminate
the employment pursuant to this section
required the consent of the other party.
In other words, the law firm argued that
Ms Lau and Ms Tsui were not allowed to
unilaterally terminate their employment
by making a payment in lieu in respect of
part of their notice period without the law
firm’s consent. The Court of Final Appeal
had a contrary view. It ruled that the
mechanism under section 7(2) of the EO is
unilateral. Whilst the Court acknowledged
that the term “to agree” is often used to
mean “to reach consensus with some other
person or persons”, the meaning of the
term in the context of section 7(2) of the
EO was different. The Court ruled that
the term “agreeing to pay” meant that
one promises or undertakes to do an act
without the need to obtain agreement from
the other party.
Thus, the Court of Final Appeal held
that Ms Lau and Ms Tsui complied with
the legal requirements to terminate their
employment by making a payment in
lieu in respect of the balance of their
respective termination notice periods to
the law firm.
Second issue—Inclusion of
annual leave in notice period
The second issue centres around the
provisions of section 6(2A) of the EO
which provides that:
“Without prejudice to section 41D,
annual leave to which an employee is
entitled under section 41AA shall not
be included under subsection (2) in the
length of notice required to terminate a
contract of employment.”
Pursuant to the terms of Ms Lau’s
employment contract, she was entitled to
three weeks of paid annual leave which
was to be taken with the prior approval
of the firm’s partners. Ms Lau included
half a day of annual leave as part of the
termination notice. As a result, Kao, Lee
& Yip argued that the notice given by
Ms Lau was half a day short. The Court
of Final Appeal disagreed. The Court held
that section 6(2A) of the EO was “intended
solely for the benefit of employees”, in
that it operated to prevent an employer
giving shorter notice than the contractual
entitlement taking into account a period
of unused leave. However, an employee
is entitled to utilize his leave entitlement
during his notice period.
Kao, Lee & Yip failed on both issues
at the Court of Final Appeal. The overall
result of the case was that Ms Lau and
Ms Tsui were entitled to terminate their
employment in the manner which
they did.
Nigel Francis
Partner
Minter Ellison, Hong Kong
Winnie Wong
Associate
Minter Ellison, Hong Kong
 法律新知

僱員終止僱傭合約須知

范禮尊及黃沛雯

來香港經濟復甦，僱員趁機另謀 予該律師行三個月的離職通知，這意味著 第一個問題—根據《僱傭條例》第7

近 高就，導致員工流失率上升。本
文著重討論有關僱員終止僱傭合
約的問題。僱主應當對此加以瞭解，方可
第一個月繼續工作，餘下的兩個月則補回
代通知金。2005年8月19日，她們各自致函
該律師行，要求該律師行告知實際需支付
條終止僱傭合約
L a u女士和Ts u i女士根據《僱傭條例》第
7(2)條終止僱傭合約並無爭議之處。就第一
避免與僱員產生不必要的糾紛。 的代通知金。 個問題而言，《僱傭條例》的相關條文規
如果僱員提出終止僱傭合約，有權選擇 翌日，該律師行回函表示不接納她們支 定如下：
在通知期的部分時間工作或支付代通知金 付代通知金補回餘下的通知期，該律師行也
補回餘下的通知期。僱員無須即時作出決 未有回應她們的垂詢，覆函指示她們應當支 第6條
定，可以選擇在通知期工作的任何時候支 付多少代通知金。於是，她們再次致函該律 (1) 「除第(2)…條另有規定外，僱傭合
付部分代通知金。僱員縮短通知期無須取 師行，並附上代通知金的支票（支票金額按 約的任何一方均可隨時以口頭或書
得僱主同意，便可支付代通知金補回餘下 照自己計算的結果，但聲明計算有誤會即時 面通知對方其終止合約的意向而終
的通知期，僱員也有權將自己應得的年假 支付差額），但該律師行拒收兩人的支票。 止該合約。
納入通知期中。本文將從Kao, Lee & Yip (a 2005年9月19日（即最後工作日），儘管她 (2) 終止僱傭合約所需的通知期如下 —
firm) v Lau Wing and Tsui Wai Yu, FACV 們再次向該律師行遞交支票並遭拒絕，但還 …
7/2008（2008年10月29日）一案的判決書 是離開該律師行，因為她們相信自己支付了 ( c ) 如屬其他情況，則通知期為議
分析這兩項原則。 代通知金，也履行了第一個月通知期上班工 定的期限，但如屬連續性合約者，
作的要求。 則不得少於7天。」
Kao, Lee & Yip (a firm) v Lau 該律師行針對Lau女士和Tsui女士展開
Wing and Tsui Wai Yu的案情 法院程序。該律師行認為，她們無權就其 第7條
兩名初級律師（Lau女士和Tsui女士）離職 部分通知期承諾支付代通知金，從而單方 (1) 「…僱傭合約的任何一方如同意付
時在高李葉律師行工作了一至兩年。兩人的 面終止僱傭合約。該律師行在高等法院的 給對方一筆款項，而款額相等於僱
聘用條款大體相同，均列明在各自的聘用函 法律程序中被判敗訴，再向上訴法庭提出 員在第6條所規定的通知期內本應累
中。按照僱傭合約的規定，只要僱傭合約中 上訴遭駁回，最後上訴至終審法院也遭駁 算的工資額，則可無須給予通知而
任何一方給予三個月通知，該律師行或該兩 回。下文將討論終審法院的判決。 隨時終止合約。
名律師均可終止相應的僱傭合約。 終審法院必須判定兩個問題：(i)按《僱 (2) 僱 傭 合 約 的 任 何 一 方 ， 在 按 照 第
她們於2005年8月19日向該律師行提交 傭條例》第7條終止僱傭合約是否需要取得 6條給予適當通知後，如同意付
書面辭呈。由於她們渴望依法終止僱傭合 僱主和僱員雙方的同意；(ii)如果僱員將年 給對方第( 1 )款所提述款項的一
約，因此在寫給該律師行的函件中表示希 假計入通知期內，《僱傭條例》第6(2A)條 部分，而該部分的款額是就合約
望「支付代通知金補回2005年9月20日至 的作用是否會導致離職通知期失效。第一 終止時至通知期應屆滿的期間按
2005年11月18日（首尾兩日包括在內）， 個問題同時涉及Lau女士和Tsui女士，第二 比例計算的，則可隨時終止該合
從而縮短三個月通知期。」由於她們須給 個問題只涉及Lau女士。 約。 」

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 法律 新 知

高李葉律師行指出，《僱傭條例》第 第二個問題—將年假納入通知期 員有權在其通知期內休假。

7(2)條中的「同意付給」指一方提議按本條 第二個問題主要涉及《僱傭條例》第6(2A) 高李葉律師行在終審法院中就上述兩個
款終止僱傭合約需取得對方同意，也就是 條的規定： 問題所提出的理由均不成立。該案的結果
說，該律師行認為，未經本行同意，Lau女 是，Lau女士和Tsui女士均有權以自己的方
士和Tsui女士不得支付代通知金補回部分通 「在不損害第41D條的規定下，僱員根據 式終止僱傭合約。
知期，從而單方面終止僱傭合約。但終審 第41AA條有權享有的年假，不得計算在第(2)
法院持相反觀點，裁定《僱傭條例》第7(2) 款所訂終止僱傭合約所需的通知期內。」
條的機制屬單向性的。雖然法院承認「同
意」一詞通常指「與某人或某些人達成共 依照Lau女士的僱傭合約條款，她有權
識」，但該詞在《僱傭條例》第7(2)條的語 享有三個星期的有薪年假，經該律師行合 范禮尊
境中包含不同意思。法院裁定，「同意付 夥人的事先批准，便可放取年假。Lau女 合夥人
給」指某人許諾或承諾採取一項行動，而 士將半天年假納入離職通知中，因此高李 銘德律師事務所，香港
無須取得對方同意。 葉律師行指出，Lau女士發出的通知期少
因此，終審法院裁定，Lau女士和Tsui 了半天。終審法院卻不以為然，認為《僱 黃沛雯
女士就各自餘下的離職通知期向該律師行 傭條例》第6(2A)條「僅意圖照顧僱員的利 律師
支付代通知金的做法符合終止僱傭合約的 益」，其作用是考慮到未使用的假期，防 銘德律師事務所，香港
法律要求。 止僱主規定比合約權利更短的通知期。僱
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