Unreasonable vs Unlawful Dismissal in Hong Kong

The question many people ask: it felt unreasonable — does that make it unlawful?

No. Under Part VIA of the Employment Ordinance (Cap. 57) these are two separate questions. One asks whether the employer had a reason the Ordinance recognises. The other asks whether the dismissal itself contravened one of the provisions that forbid dismissal. Both can be true at once, and when they are, what you can obtain is substantially larger — but the Ordinance also writes several exits for the employer, and they have to be read alongside.

The distinction decides three concrete things:

• Whether the tribunal can order you back to work over the employer's objection. On the "no valid reason" side alone, the Ordinance states only that an order must be made where both sides agree (s.32N(3A)); on the "and unlawful" side, an order must be made on the employee's agreement alone where reinstatement or re-engagement is reasonably practicable (s.32N(3B)). But s.32N(10) has to be read with them: if the employer pays the s.32NA(1) sums by the date specified in the order, the employee is not entitled to enforce the order's other terms.
• Whether there is an award of compensation at all. Compensation under s.32P (capped at $150,000) is only reachable in the "and unlawful" class, and s.32P(1) opens "Subject to section 32M" — that is, the two-step gate in s.32M(2) has to be cleared first. On the no-valid-reason side alone, the remedies listed in s.32M(1) are an order under s.32N or terminal payments under s.32O.
• Whether you need length of service. Section 32A(1)(a) requires not less than 24 months under a continuous contract. Section 32A(1)(c) states no period at all.

The thirty-second version

• Where is it? — Cap. 57, Part VIA. The entry provision is s.32A; what counts as being dismissed is s.32B; the list of valid reasons is s.32K; the remedies are ss.32M to 32P, plus ss.32PA to 32PC.
• What must be proved? — the employer must show the dismissal was for one of the five valid reasons in s.32K. Fail, and ss.32A(2) and (4)(b) treat the dismissal as being without a valid reason.
• How long have you got? — 3 months from the relevant date to make a written claim to the employer (extendable by the Commissioner, but not beyond 6 months), or 9 months to file with the Registrar of the Labour Tribunal (s.32I). Past 9 months the Tribunal has no jurisdiction unless both parties sign a memorandum (s.32J(2)).
• What can you get? — an order for reinstatement or re-engagement (s.32N) and terminal payments (s.32O); compensation (s.32P, capped at $150,000) and the further sum payable when an employer does not comply with a reinstatement order (s.32NA(1)(b): the lesser of $72,500 and three times average monthly wages) are both confined to the "and unlawful" class.

Scope of this article: it describes the general legal position only. It cannot and does not assess which class any individual reader's dismissal falls into, whether a time limit has expired, or how much might be recoverable — those turn on the contract, the manner of termination and the specific facts, and are work for a practising solicitor.

1. A word about the words

In the English text "unreasonable" is the statute's own word. Section 32M(1):

The subsection deems twice. Once the employer fails to show a valid reason, the employer is deemed to intend to extinguish or reduce the employee's statutory rights — that is the intention s.32A(1)(a) requires — and the dismissal or variation is deemed to be unreasonable. So "unreasonable" is a legal conclusion that follows from a finding, not a fact the employee has to establish.

The Chinese text of Cap. 57 does not use 「無理」 anywhere; its word in s.32M(1) is 「不合理」. The common Chinese label 「無理解僱」 is ordinary usage, not the Ordinance's. The Chinese block of this article says so and follows the statute's word.

Note also that the Ordinance contains no concept of "unfair dismissal" — Part VIA asks the two questions set out above, not whether the dismissal was fair.

2. Three doors: section 32A(1)

Section 32A(1) opens:

Door one (s.32A(1)(a)) — dismissal, and 24 months are required:

That reads as though the employee must prove the employer's intention to strip statutory rights. Section 32A(2) reverses the load:

Door two (s.32A(1)(b)) — you are not dismissed, but your terms are changed:

Section 32A(3) reverses the load here too:

Door three (s.32A(1)(c)) — no valid reason, and unlawful as well:

Section 32A(4) reverses the load here too, and it also lifts a burden of causation off the employee:

For the union-rights limb (s.21B(1)), the giving-evidence limb (s.72B(1)) and Cap. 59 s.6, the employee therefore does not have to prove that the dismissal was because of the protected act.

The continuous contract itself is also for the employer to disprove. Section 3(2):

Note the built-in 12-month clock. Section 32A(5):

This site's reading (s.32A(5) read with s.32A(1)(c)): s.32A(5) names only s.21B(2)(b), s.72B(1) and s.6 of Cap. 59. Section 15(1) (pregnancy), s.33(4B) (a paid sickness day) and Cap. 282 s.48 (work injury) do not appear in it, so on the face of the provision those three are not subject to the 12-month rule.

This site's reading (ss.32A(1)(a), (b) and (c) read together): of the three doors, only paragraph (a) states a period of service. Paragraph (b) requires only employment "under a continuous contract", and paragraph (c) says nothing about either — only that the employee "is dismissed by the employer". So the common belief that a claim needs two years' service is true of door one only.

3. What counts as being "dismissed by the employer" — section 32B(2)

This is the provision most accounts leave out, and it governs both door one and door three. Section 32B is headed "Dismissal by employer". Subsections (1) and (2) have to be read together, because (2) opens "Subject to subsection (1)".

Section 32B(1) covers one class only — dismissal to extinguish or reduce a severance payment or long service payment — and only for s.32A(1)(a):

Section 32B(2) is the general rule:

Sections 32B(3) and (4) add a further gate, again for s.32A(1)(a) only: there is no dismissal where the contract is renewed or the employee is re-engaged by the same employer under a new contract and that renewal or re-engagement "takes effect immediately on the ending of his employment under the previous contract" — with a tolerance in (4) where the employment ends on a rest day or holiday and the renewal takes effect on or before the next day.

So for the purposes of ss.32A(1)(a) and (c), what the Ordinance generally calls being dismissed is a termination by the employer otherwise than in accordance with section 9. Section 9 is headed "Termination of contract without notice by employer", and subsection (1) reads:

This site's reading (ss.32B(1) and (2) read with s.9): if the termination genuinely was in accordance with s.9, then on the wording of s.32B(2) it is not a dismissal for the purposes of s.32A(1)(a) or (c), and neither of those two doors opens. Section 9 is therefore not merely a defence at this point in Part VIA; it is part of the definition. Note limb 9(1)(b): that arm is a common law right, which the section preserves rather than creates.

But note the carve-out s.32B(1) makes. Subsection (2) is expressly subject to subsection (1), and within subsection (1)'s subject matter — dismissal to extinguish or reduce a severance payment or long service payment — two of the three limbs have nothing to do with s.9 at all: the expiry of a fixed term without renewal under the same contract (limb (b)), and the employee's own termination under s.10 by reason of the employer's conduct, which is what is usually called constructive dismissal (limb (c)). The shorthand that s.9 closes the door is not true of that class.

The burden is not one-sided either. For pregnancy and for paid sickness days the Ordinance pushes it onto the employer. Section 15(1B) provides that an employer who terminates the continuous contract of a pregnant employee is taken to have terminated otherwise than in accordance with s.9 unless the contrary is proved, or unless the employer proves that it purported to terminate under that section and reasonably believed at the time that it had a ground to do so — and s.15(1C) disapplies limb (1B)(b) in civil proceedings. Sections 33(4BAA) and (4BAB) do the same for sickness days. Each of those deemings is scoped on its face: s.15(1B) operates "for the purposes of subsection (1)(a) or (b)" and s.33(4BAA) "for the purposes of subsection (4B)". They are therefore written to help an employee establish a contravention of s.15(1) or s.33(4B) — the s.32A(1)(c) limb — and neither is expressed to operate for the purposes of the s.32B(2) definition. The reversal appears in those two provisions only; it does not extend to the other four named in s.32A(1)(c).

4. What must be proved — the five valid reasons in section 32K

Section 32K is headed "Reasons for the dismissal or the variation of the terms of the contract of employment". In full:

Three points worth separating:

• Paragraph (e) is a catch-all, and it is expressly referred to the opinion "of the court or the Labour Tribunal". The list is therefore not closed, but the threshold is "sufficient cause" and the judgement is the tribunal's, not the employer's.
• Failure to show a reason is decisive (ss.32A(2) and (4)(b), above).
• Length of service is part of the assessment. Section 32L(2):

Dismissal shortly before a statutory entitlement vests is, in other words, exactly what the provision directs the tribunal to notice.

Section 32KA adds a specific carve-out: absence due to complying with Cap. 599 (the Prevention and Control of Disease Ordinance) does not count as a valid reason. Section 32KA(1) sets the scope — an employee subject to a Cap. 599 requirement who is dismissed or has the terms of employment varied by the employer; section 32KA(2):

In other words, an employee who is absent because of complying with a Cap. 599 requirement — a quarantine, isolation or testing order, for example — cannot have that absence itself used by the employer as a valid reason to dismiss or to vary the contract.

5. The time limit: 3 months / 6 months / 9 months

The time limit does not live in the Labour Tribunal Ordinance — it lives in section 32I of the Employment Ordinance:

A second, harder line sits in jurisdiction. Section 32J(2):

Which day is the "relevant date"? Section 32F opens "For the purposes of and subject to this Part, relevant date (有關日期)—" and then provides that the term

The s.2(1) definition, all seven limbs:

In one line: if the employer gives notice, the clock starts when the notice expires, not on the day you were told. If the employer pays in lieu, it starts on the date up to which those wages are calculated. A fixed term, a contractual retirement age, a resignation under s.10 and death each have their own starting point — and where the contract is terminated other than in accordance with the Ordinance, it is the date of termination.

6. Two procedural traps that end the claim (section 32C)

• Unreasonably refusing a re-employment offer. Sections 32C(1) and (2): where, not less than 7 days before the relevant date, the employer has offered to renew the contract or re-engage on terms meeting the conditions in those subsections, an employee who has unreasonably refused that offer is not entitled to remedies under Part VIA. But s.32C(5):

• Walking out during the notice period. Section 32C(4):

The two traps are not symmetrical. Section 32C(5) disapplies subsections (1) to (3) only for the s.32A(1)(c) class; subsection (4) is not within those words. But subsection (4) carries its own scope limit: it removes remedies only "by reason of dismissal." Door two (s.32A(1)(b)) is a claim for unilateral variation of contract terms, not a dismissal claim, so it is not caught by this trap. On the text, walking out during the notice period bites doors one and three, not door two.

7. Remedies, ceilings, and the employer's exits

No valid reason: section 32M(1)

The remedies this subsection opens are two: an order under s.32N, or terminal payments under s.32O. Nothing else. What it supplies in addition is the deeming of the employer's intention, which is the mental element s.32A(1)(a) states.

Section 32M(3) keeps everything outside Part VIA alive alongside it:

No valid reason and unlawful: section 32M(2) takes two steps

This is the real entrance to compensation, and it is written as two steps, not one.

This site's reading (s.32M(2) read with s.32P(1)): s.32P(1) opens "Subject to section 32M". On the wording of s.32M(2), the court or tribunal must first find that the employer has not shown a valid reason; then the employer must, "after having been given an opportunity to do so", refuse or fail to show that the dismissal is not in contravention of the six named provisions. Both steps come before compensation. So the shorthand that contravening one of the six automatically produces compensation does not match the drafting.

Reinstatement is considered first, money second

Section 32N is headed "Order for reinstatement and re-engagement". Subsection (2) fixes the order:

Subsection (3) sets out what happens once such an order is found appropriate:

From there the two classes diverge:

• No valid reason only (s.32A(1)(a) or (b)) — s.32N(3A): "(3A)If the employer and the employee express agreement, the court or Labour Tribunal must make an order for reinstatement or re-engagement pursuant to the agreement." This site's reading: the subsection states only that an order must be made where both agree; it does not in terms forbid an order where the employer does not agree. What the Ordinance writes for the s.32A(1)(c) class alone — an order on the employee's agreement by itself — it does not write for the s.32A(1)(a) or (b) class.
• No valid reason and unlawful (s.32A(1)(c)) — s.32N(3B): "(3B)For a dismissal of an employee in any of the circumstances mentioned in section 32A(1)(c), even though only the employee expresses agreement, the court or Labour Tribunal must make an order for reinstatement or re-engagement if it finds that reinstatement or re-engagement of the employee by the employer is reasonably practicable."

Before making that finding, s.32N(3C) requires the tribunal to let both sides present their cases and to take into account the circumstances of the claim, including the circumstances of employer and employee, the circumstances surrounding the dismissal, any difficulty the employer might face in reinstating or re-engaging, and the relationship between the parties and between the employee and others connected with the employment. Sections 32N(3D) and (3E) allow the tribunal, with both parties' agreement, to request a report from the Commissioner on information obtained in conciliation.

What if the employer does not comply — and the two exits

First, what the order is. Section 32N(4) opens:

One of those terms is the one long-service employees care about most — continuity is not broken. Section 32N(4)(b):

(Section 32N(6)(e) contains the equivalent term for re-engagement.) Section 32N(5) also lets the tribunal specify any amount payable by the employer for arrears of pay and statutory entitlements for the period between the relevant date and the date of reinstatement, and any amount the employee must restore; s.32N(7) does the same for re-engagement.

Section 32N(4)(d) then requires the order to contain:

(Section 32N(6)(g) contains the equivalent term for re-engagement.) Section 32NA(1) sets out those sums:

The two do not net off against each other. Section 32NA(2):

Exit one: paying discharges the order (s.32N(10)).

Exit two: applying to be relieved of the s.32NA(1)(b) sum (s.32PC). The section is headed "Relief from paying sum mentioned in section 32NA(1)(b)", and subsection (2) provides:

Section 32PC(3) states the ground:

Under s.32PC(5) it must be made not later than 7 days after the date by which the employee must be reinstated or re-engaged, or within an extended time allowed by the tribunal. Under s.32PC(8) the tribunal may refuse the application, relieve the employer wholly or partly, or specify a later reinstatement date.

This site's reading (ss.32N(4), 32N(3B), 32N(10) and 32PC read together): s.32N(3B) does allow an order to be made without the employer's agreement, and s.32N(4) states that a reinstatement order is an order that the employer "shall treat the employee in all respects as if he had not been dismissed". What s.32N(10) removes is not that obligation but the employee's entitlement to enforce the order's other terms once the s.32NA(1) sums are paid; s.32PC is a procedure for reducing the further sum. The Ordinance says nothing about how those two provisions work out in practice against the reinstatement power, and this article reaches no conclusion on it.

If there is no reinstatement, it is money

Terminal payments (s.32O) — the section is headed "Award of terminal payments". Section 32O(1) opens "Subject to section 32M", exactly as s.32P(1) does: if no order for reinstatement or re-engagement is made under s.32N, the court or Tribunal may award terminal payments.

Terminal payments are not a new head of damages; they are statutory entitlements the employee has not been paid. Section 32O(2):

Section 32O(3), which opens "Subject to subsection (4)", lists what they include; limb (b) is:

The rest are wages and other payments due under the contract, end of year payment, any maternity leave pay or sum payable under Part III, paternity leave pay, severance payment or long service payment, any sickness allowance or sum payable under Part VII, holiday pay, annual leave pay, and any other payments due under the Ordinance and the contract.

One design feature is easy to miss. Section 32O(4):

Falling short of a qualifying period does not zero the item out; it is reckoned on actual service. (The "(1) or (5)" in that subsection points to s.32O(5): where no reinstatement or re-engagement order is made for an unreasonable variation of the terms of the contract, the tribunal may treat the variation as an unreasonable dismissal by the employer and award terminal payments, calculated up to the last date the employee renders services or the date of the award, whichever is earlier — the exit on door two.) As to how the figures are worked, s.32O(6): "(6)The respective provisions governing the calculation of the statutory entitlements shall apply to the calculation of the terminal payments."

Compensation (s.32P) — s.32P(1):

In fixing the amount the tribunal takes the circumstances of the claim into account; s.32P(3) lists seven: the circumstances of employer and employee, the length of employment, the manner in which the dismissal took place, loss attributable to the dismissal, the possibility of obtaining new employment, any contributory fault borne by the employee, and any payments the employee is entitled to receive in respect of the dismissal, including any terminal payments under s.32O. The ceiling is in s.32P(4):

Is non-payment a criminal offence? — section 43P

Yes, but the provision is in Part IXB, not Part VIA, and it is wider than the s.32NA(1)(b) sum. Section 43P is headed "Offence of employer’s failure to pay any sum payable under award of tribunal", and subsection (1) provides:

Under s.43N(1) the defined "specified entitlement" includes terminal payments payable under s.32O, compensation payable under s.32P, and the sums mentioned in s.32NA(1)(a)(i), (a)(ii) and (b) payable under an order made under s.32N — but two of those carry limits, and the limits are written in s.43N, not in s.32O. Section 43N(1)(j) reaches terminal payments only to the extent that they are entitlements within paragraphs (a) to (i) of the definition (including those arising by virtue of s.32O(5) on an unreasonable variation), or that the award is made by virtue of s.32M(2). Section 43N(1)(l)(i) reaches the s.32NA(1)(a)(i) sum only "to the extent that the sum would have been awarded as entitlements falling within paragraph (j) if neither an order for reinstatement nor an order for re-engagement had been made". Sections 43P(4) and (5) make the payment date specified in a reinstatement or re-engagement order the date on which the sum is payable for the purposes of s.43P(1)(b)(ii).

8. The six named provisions, read to the end

The six provisions named in s.32A(1)(c) are the complete list of what counts as "unlawful" inside Part VIA. None of the six is an absolute bar, but not all in the same way: three carry an exit on the face of the provision itself — that exit qualifies the prohibition itself. The other three carry no exception in their own text and remain unqualified prohibitions (s.21B(2)(b) is a standalone offence, see below); what the 12-month clock in s.32A(5) limits is not those three provisions but whether a dismissal that breaches one of them additionally qualifies the employee for a Part VIA remedy — s.32A(5) itself reads "an employee shall be entitled to remedies under this Part if and only if" (quoted in full in section 2 above).

The relevant text of each follows.

Cap. 57 s.15(1) (the subsection opens: "(1)Subject to subsections (1A) and (1B)—"):

Limb (b) is the one written for the employee who learns she is pregnant after the dismissal letter. Its conditions are that the termination was made otherwise than in accordance with s.9, and that she serves notice of pregnancy immediately after being informed of it; if they are met, the employer must withdraw. Section 32A(1)(c)(i) names "section 15(1)" whole, so limb (b) is inside Part VIA as much as limb (a).

Cap. 57 s.15(1A):

Cap. 57 s.21B(2)(b) (following the opening words of s.21B(2): "(2)Any employer, or any person acting on behalf of an employer, who—", and running into the closing words of that subsection):

The right in s.21B(1)(b) is the right to take part in the activities of the trade union "at any appropriate time", and s.21B(3) defines that term:

(The same subsection defines "working hours" as any time when, in accordance with his contract with his employer, the employee is required to be at work.) So for the union-activities limb, whether the activity took place at an appropriate time is part of whether the s.21B(1)(b) right was exercised at all — and therefore part of when the 12-month clock in s.32A(5)(a) starts running.

Cap. 57 s.33(4B):

Cap. 57 s.72B(1):

Cap. 59 s.6:

Cap. 282 s.48(1):

Cap. 282 s.48(1A) — a short injury falls outside subsection (1), and into a parallel prohibition:

Sections 32A(1)(c)(iii), 32M(2)(c) and 32P(1)(b) all name "section 48" without a subsection, so (1A) is inside Part VIA as much as (1). Note also what s.48 turns on: incapacity, not the fact that the employee has filed a compensation claim.

Five of the six carry consequences outside Part VIA; Cap. 59 s.6 is the exception. Section 32M(3) preserves the employer's civil and criminal liability otherwise than under Part VIA, and five of the named provisions have their own: s.15(2) (on contravention of s.15(1)(a) or (b), the sum that would have been payable on a s.7 termination, plus a further sum equal to the monthly average of wages, plus maternity leave pay for 14 weeks where the employee is or would have been entitled to it); s.15(4) (offence, fine at level 6); s.33(4BA) (the s.7 sum plus a further sum equal to 7 times the daily average of wages); s.33(4BB) (offence, fine at level 6); s.33(4C) (sickness allowance still payable notwithstanding the termination); Cap. 282 s.48(2) (contravention of s.48(1) or (1A) is an offence, fine at level 6); and Cap. 57 s.72B(2) (on conviction of an offence under s.63A(5) in respect of an action prohibited by s.72B, the convicting court or magistrate may order the employer to pay compensation to the employee, in addition to any fine). Cap. 59 s.6, quoted in full above, is a bare prohibition with no payment or penalty provision of its own. This article does not describe the claim or prosecution procedures for any of them.

This site's reading (the six read together): read to the end, "unlawful dismissal" is not a label meaning "this can never be done". Three of the six carry an exit on their face — s.9 or the Commissioner's consent — one carries a probation disapplication as well, and the other three carry no exception in their own text; the prohibition in each of those three remains unqualified (s.21B(2)(b) is itself a standalone offence with no time limit of its own), and what the 12-month clock in s.32A(5) governs is only whether that dismissal additionally qualifies the employee for a Part VIA remedy. The Ordinance does not present the six as equally strong, and this article does not rank them.

9. Discrimination is not inside Part VIA

This is the point most often assumed the other way round. Section 32Q is headed "Exclusion":

This site's reading (s.32Q read with s.32A(1)(c)): because acts of discrimination are excluded from Part VIA, a dismissal on grounds of sex, disability, family status or race does not travel through s.32A(1)(c) into the "and unlawful" class and does not reach the s.32P award. Those claims run under the four discrimination ordinances themselves. This article quotes no provision of those four ordinances and states nothing about their thresholds, time limits or remedies.

10. Who hears it — the Labour Tribunal, and the $15,000 figure

The Labour Tribunal, and only the Labour Tribunal

Section 32J(1):

Sections 32J(3) to (5) then narrow it:

Where the $15,000 actually comes from

It is commonly said that the Labour Tribunal only takes claims above $15,000. That figure is not in the Labour Tribunal Ordinance (Cap. 25). Section 7(1) of Cap. 25 says only:

Paragraphs 1, 4 and 5 of the Schedule to Cap. 25 each close with the same words:

The $15,000 is in paragraph (c) of the Schedule to the Minor Employment Claims Adjudication Board Ordinance (Cap. 453) — and it sits inside a sentence that confers jurisdiction on the Board, not one that limits the Labour Tribunal. That Schedule is headed "Jurisdiction of the Minor Employment Claims Adjudication Board", and its head-words are:

Section 5(1) of Cap. 453 confines the Board to the same list:

Paragraph (c) then reads:

Paragraph 7 of the Schedule to Cap. 25 — the claim this whole article is about — reads, without those closing words:

The same Schedule draws one other jurisdictional line, and it has nothing to do with amount. Paragraph 3:

On its wording paragraph 3 bites on paragraphs 1 and 2 and does not mention paragraph 7; a claim founded in tort is outside the tribunal at any amount.

This site's reading (Cap. 453 s.5(1) and its Schedule, Cap. 25 s.7(1) and its Schedule, and Cap. 57 s.32J read together): read in order, these provisions do settle the question.

• Cap. 453 s.5(1) and the Schedule's head-words confine the Board's jurisdiction to the claims the Schedule describes.
• None of the heads in paragraphs (a), (b) and (c) of that Schedule is a claim for remedies under Part VIA of Cap. 57. The Board therefore has no jurisdiction over a Part VIA claim at any amount, and the $15,000 figure has nothing to attach to.
• Cap. 25 s.7(1) and paragraph 7 of its Schedule give "A claim for remedies under Part VIA of the Employment Ordinance (Cap. 57)" to the Labour Tribunal, and paragraph 7 carries no words excluding claims specified in the Cap. 453 Schedule — because none is needed.
• Cap. 57 s.32J(1) gives the Labour Tribunal jurisdiction over a Part VIA claim, and s.32J(5) provides that apart from a transfer under s.32J(3) neither the Court of First Instance nor the District Court has jurisdiction over one.

So $15,000 is a ceiling on the Board's jurisdiction written into Cap. 453, not a floor on the Labour Tribunal's. A claim for remedies under Part VIA goes to the Labour Tribunal whatever it is worth; no money floor is written for it. (The Cap. 453 version relied on is that in force 17 September 2021. The Schedule's head-words are "Subject to any provision in this Ordinance (including section 7)", and s. 7 is a limitation period, not an amount.)

You will not have a lawyer — and that is statutory

Section 23 of the Labour Tribunal Ordinance is headed "Right of audience". Subsection (2):

Unless the lawyer is the party, the lawyer has no right of audience. Subsection (1) lists who does:

(The asterisk before limb (e) is the ordinance's own editorial-note marker.)

No conciliation, no hearing

Labour Tribunal Ordinance s.15(1):

Once a settlement is reduced to the prescribed written form, signed and filed, s.15(9): "(9)A settlement filed under subsection (8) shall be treated for all purposes as if it were an award of the tribunal."

That connects back to the s.43P offence. Cap. 57 s.43N(2):

Section 43N(3) fixes the date of such an award:

So under s.43N(2)(a) a filed settlement is an "award of a tribunal" for Part IXB. The s.43P(1) offence of failing to pay a specified entitlement therefore reaches a settled sum as much as an adjudicated one, and the 14 days in s.43P(1)(b)(i) run from the date the settlement was filed (s.43N(3)(a)).

Working the numbers

Part VIA fixes only two amounts — $150,000 and $72,500 — and the relationship between them is what sets the distance between the two classes.

This article cites no wage figure anywhere, so the arithmetic below invents no monthly salary. It uses only amounts stated in the statute.

1. Who is the $72,500 ceiling actually for?

Section 32NA(1)(b) takes the lesser of $72,500 and three times the employee's average monthly wages. The two are equal at:

• $72,500 ÷ 3 = about $24,167
• Average monthly wages below about $24,167 → the 3× figure is the smaller one, and $72,500 is never reached.
• Average monthly wages above about $24,167 → the sum is capped at $72,500, and higher pay adds nothing.

2. The two sums add; they do not offset

Section 32NA(2) expressly directs the tribunal, in fixing the subsection (1)(a) amounts, not to take into account the subsection (1)(b) sum. So the (1)(b) sum sits on top of terminal payments and compensation.

3. Adding the two statutory ceilings

• Compensation ceiling (s.32P(4)): $150,000
• Ceiling on the non-compliance sum (s.32NA(1)(b)(i)): $72,500
• Together: $150,000 + $72,500 = $222,500

Note how the two meet. Section 32P(1)(a) applies only where "neither order for reinstatement nor order for re-engagement under section 32N is made", while s.32NA(1)(b) arises only where such an order was made and not complied with. An actual s.32P award and an actual s.32NA(1)(b) sum therefore do not coexist. The single route to the sum above is s.32NA(1)(a)(ii) — "the amount of compensation that would have been awarded under section 32P" — carried into the non-compliance package, with the s.32NA(1)(b) sum added on top.

4. But $222,500 is not a stable ceiling

Three things have to be read with it:

• None of it is available where the dismissal is outside s.32A(1)(c). Section 32M(1) offers two remedies only — an order under s.32N or terminal payments under s.32O — so both figures must come through the s.32A(1)(c) door and then through the two steps in s.32M(2).
• Section 32PC(8)(b) lets the tribunal relieve the employer of the s.32NA(1)(b) sum wholly or partly, so the $72,500 limb can be reduced away.
• Section 32P(5) empowers the Commissioner for Labour to amend the s.32P(4) amount by notice in the Gazette; s.32NA(3) empowers the Commissioner to amend the s.32NA(1)(b)(i) amount the same way. The figures given here are those in the version cited.

Terminal payments under s.32O carry no Part VIA ceiling of their own; they are computed under the provisions governing each statutory entitlement (s.32O(6)).

(The calculations above are worked from amounts stated in the provisions themselves, to illustrate how they operate. They are not an assessment of any individual reader's case.)