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: this guide describes the general legal position. Which class a particular dismissal falls into, whether a time limit has expired, and how much might be recoverable turn on the contract, the manner of termination and the specific facts.

1. A word about the words

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

"(1)On a claim for remedies under this Part if the court or Labour Tribunal finds that the employer has not shown a valid reason as specified under section 32K, the employer is deemed to intend to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance and the dismissal or the variation is deemed to be unreasonable and the court or Labour Tribunal may make an order under section 32N or an award of terminal payments under section 32O."

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.

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:

"(1)An employee may be granted remedies against his employer under this Part—"

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

"(a)where he has been employed under a continuous contract for a period of not less than 24 months ending with the relevant date and he is dismissed by the employer because the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance;"

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

"(2)For the purposes of subsection (1)(a), an employee who has been dismissed by the employer shall, unless a valid reason is shown for that dismissal within the meaning of section 32K, be taken to have been so dismissed because the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance."

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

"(b)where he is employed under a continuous contract and the employer, without his consent and, in the absence of an express term in his contract of employment which so permits, varies the terms of his contract of employment because the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance; or"

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

"(3)For the purposes of subsection (1)(b), the variation of the terms of the contract of employment by the employer as referred to in that subsection shall, unless a valid reason is shown for that variation within the meaning of section 32K, be taken to be a variation of the terms of the contract of employment by the employer by reason that the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance."

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

"(c)where he is dismissed by the employer other than for a valid reason within the meaning of section 32K and in contravention of—(i)section 15(1), 21B(2)(b), 33(4B) or 72B(1);(ii)section 6 of the Factories and Industrial Undertakings Ordinance (Cap. 59); or(iii)section 48 of the Employees’ Compensation Ordinance (Cap. 282), whether or not the employer has been convicted of an offence in respect of the dismissal."

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

"(4)For the purposes of subsection (1)(c)—(a)it shall not be necessary for an employee to show in relation to—(i)subsection (1)(c)(i), that his contract of employment was terminated by reason of his exercising any of the rights vested in an employee by or by virtue of section 21B(1) or by reason of the fact of his doing any of the things mentioned in section 72B(1);(ii)subsection (1)(c)(ii), that his contract of employment was terminated by reason of the fact of his doing any of the things mentioned in section 6 of the Factories and Industrial Undertakings Ordinance (Cap. 59); and(b)an employee who has been dismissed by the employer shall be taken to have been dismissed without a valid reason unless a valid reason is shown for that dismissal within the meaning of section 32K."

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):

"(2)In any dispute as to whether a contract of employment is a continuous contract the onus of proving that it is not a continuous contract shall be on the employer."

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

"(5)For the purposes of subsection (1)(c), an employee shall be entitled to remedies under this Part if and only if—(a)in relation to a dismissal in contravention of section 21B(2)(b), the employee has exercised any of the rights mentioned in section 21B(1) within a period of 12 months immediately preceding such dismissal by the employer;(b)in relation to a dismissal in contravention of section 72B(1), the employee has done any of the things mentioned in that section within a period of 12 months immediately preceding such dismissal by the employer;(c)in relation to a dismissal in contravention of section 6 of the Factories and Industrial Undertakings Ordinance (Cap. 59), the employee has done any of the things mentioned in that section within a period of 12 months immediately preceding such dismissal by the employer."

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):

"(1)For the purposes of section 32A(1)(a) and subject to this Part, where an employee is dismissed because the employer intends to extinguish or reduce his right to a severance payment or to a long service payment, he shall be taken to be dismissed by his employer if, but only if—(a)the contract under which he is employed is terminated by the employer with or without notice or payment in lieu otherwise than in accordance with section 9;(b)where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract; or(c)the employee terminates that contract with or without notice or payment in lieu, in circumstances such that he is entitled to terminate it without notice or payment in lieu in accordance with section 10 by reason of the employer’s conduct."

Section 32B(2) is the general rule:

"(2)Subject to subsection (1), an employee shall be taken for the purposes of section 32A(1)(a) and (c) to be dismissed by his employer when the contract under which he is employed is terminated by the employer with or without notice or payment in lieu otherwise than in accordance with section 9."

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:

"An employer may terminate a contract of employment without notice or payment in lieu—(a)if an employee, in relation to his employment—(i)wilfully disobeys a lawful and reasonable order;(ii)misconducts himself, such conduct being inconsistent with the due and faithful discharge of his duties;(iii)is guilty of fraud or dishonesty; or(iv)is habitually neglectful in his duties; or(b)on any other ground on which he would be entitled to terminate the contract without notice at common law."

"(2)The fact that an employee takes part in a strike does not entitle his employer to terminate under subsection (1) the employee’s contract of employment."

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:

"For the purposes of this Part, it shall be a valid reason for the employer to show that the dismissal of the employee or the variation of the terms of the contract of employment with the employee was by the reason of—(a)the conduct of the employee;(b)the capability or qualifications of the employee for performing work of the kind that the employee was employed by the employer to do;(c)the redundancy of the employee or other genuine operational requirements of the business of the employer;(d)the fact that the employee or the employer or both of them would, in relation to the employment, be in contravention of the law, if the employee were to continue in the employment of the employer or, were to so continue without that variation of the terms of his contract of employment; or(e)any other reason of substance, which, in the opinion of the court or the Labour Tribunal, was sufficient cause to warrant the dismissal of the employee or the variation of the terms of that contract of employment."

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):

"(2)Without affecting the generality of subsection (1), the circumstances of a claim include the length of time that the employee has been employed under that contract of employment with the employer as compared to the length of qualifying service required for the right, benefit or protection conferred or to be conferred upon the employee by this Ordinance which is capable of being extinguished or reduced by means of the dismissal or the variation of the terms of the contract of employment."

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):

"(2)In determining for the purposes of this Part whether the employer has a valid reason for the dismissal of the employee or the variation of the terms of the employee’s contract of employment within the meaning of section 32K, the employee’s absence from work due to the employee’s compliance with the Cap. 599 requirement does not constitute a valid reason for the dismissal or variation."

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:

"Notwithstanding anything in this Part, an employee shall not be entitled to remedies under this Part unless—(a)the employee has made a claim for such remedies by notice in writing given to the employer before the end of the period of 3 months beginning with the relevant date, or within such extended period not exceeding 6 months as the Commissioner may permit; or(b)a question as to the right of the employee to such remedies has been made the subject of a claim filed with the Registrar of the Labour Tribunal in accordance with Part 4 of the Labour Tribunal Ordinance (Cap. 25) before the end of the period of 9 months beginning with the relevant date."

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

"(2)The Labour Tribunal does not have jurisdiction to inquire into, hear or determine a claim under this Part if the relevant date in respect of that claim falls more than 9 months before the date on which the claim is filed with the Registrar of the Labour Tribunal, unless the parties to the claim, by a memorandum signed by them and filed with the Registrar, have agreed that the Tribunal shall have jurisdiction."

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

"(a)in relation to the termination of employment of an employee, has the same meaning as in section 2(1); and(b)in relation to the employer varying the terms of the contract of employment of an employee, means the date on which that variation takes effect."

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

"in relation to the termination of employment of an employee, means— (a)where the employee’s contract of employment is terminated by notice in accordance with section 6, the date on which that notice expires; (b)where the employee’s contract of employment is terminated by payment in lieu of notice in accordance with section 7, the date up to which such wages are calculated; (c)where the employee terminates his contract of employment without notice or payment in lieu in accordance with section 10, the date on which termination takes effect; (d)where the employee is employed under a contract for a fixed term and that term expires, the date on which that term expires; (e)where a continuous contract of employment specifies an age of retirement and the employee retires at that age, the date of retirement; (f)where the employee dies, the date of his death; and (g)where the employee’s contract of employment is terminated other than in accordance with the provisions of this Ordinance, the date of termination;"

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.

Most relevant to: someone who has just received a dismissal letter and is still working out a notice period. Your 3 and 9 months have not started — but once they start they do not pause, and the 9-month line in s.32J(2) is jurisdictional, not discretionary.

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):

"(5)Subsections (1) to (3) shall not apply where an employee is dismissed in any of the circumstances mentioned in section 32A(1)(c)."

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

"(4)An employee shall not be entitled to remedies under this Part by reason of dismissal where, having been given notice of the termination of his contract of employment by his employer in accordance with section 6, he leaves the service of his employer before the expiration of that notice unless he so leaves—(a)with the prior consent of the employer; or(b)after having made a payment in lieu to the employer in accordance with section 7."

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)

"(1)On a claim for remedies under this Part if the court or Labour Tribunal finds that the employer has not shown a valid reason as specified under section 32K, the employer is deemed to intend to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance and the dismissal or the variation is deemed to be unreasonable and the court or Labour Tribunal may make an order under section 32N or an award of terminal payments under section 32O."

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:

"(3)An order or award made under this Part shall not affect the civil or criminal liability of an employer otherwise than under this Part in respect of the dismissal or the variation of the terms of the contract of employment."

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.

"(2)On a claim for remedies under this Part if, in relation to the dismissal of an employee in any of the circumstances mentioned in section 32A(1)(c), the court or Labour Tribunal finds that the employer has not shown a valid reason for that dismissal within the meaning of section 32K and, upon that finding the employer, after having been given an opportunity to do so, refuses or fails to show that the dismissal is not in contravention of—(a)section 15(1), 21B(2)(b), 33(4B) or 72B(1);(b)section 6 of the Factories and Industrial Undertakings Ordinance (Cap. 59); or(c)section 48 of the Employees’ Compensation Ordinance (Cap. 282), then the court or Labour Tribunal may make an order under section 32N or an award of terminal payments under section 32O and, in the case where the court or Labour Tribunal does not make an order under section 32N, the court or Labour Tribunal may, whether or not it has made an award of terminal payments under section 32O, make an award of compensation under and in accordance with section 32P to be payable to the employee by the employer as it considers just and appropriate in the circumstances."

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:

"(2)The court or Labour Tribunal shall first consider whether to make an order for reinstatement, and if it decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement."

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

"(3)If the court or Labour Tribunal finds that an order for reinstatement or re-engagement is appropriate—(a)it must explain to the employer and the employee what order for reinstatement or re-engagement may be made; and(b)it must ask the employer and the employee whether they agree to the making of such an order."

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:

"(4)An order for reinstatement is an order that the employer shall treat the employee in all respects as if he had not been dismissed or as if there had been no such variation of the terms of the contract of employment. On making the order, the court or Labour Tribunal must specify the terms on which the employee must be reinstated, including—"

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

"(b)a term to the effect that, for reckoning the employee’s existing and future entitlements under this Ordinance and the employee’s contract of employment, the continuity of the employee’s period of employment is not to be treated as broken by—(i)if the contract was terminated by the employer by payment in lieu of notice—the employee’s absence from work between the last date on which the employee rendered services to the employer and the date of reinstatement; or(ii)in any other case—the employee’s absence from work between the relevant date and the date of reinstatement;"

(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:

"(d)a term to the effect that, if the employee is not reinstated on the terms specified in the order by the date so specified, the employer must pay to the employee the sums mentioned in section 32NA(1) by the date specified for that purpose in the order."

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

"(1)For the purposes of section 32N(4)(d) and (6)(g), the following sums are payable by the employer to the employee—(a)the sums that would have been awarded if neither an order for reinstatement nor an order for re-engagement had been made, namely—(i)the amount of terminal payments that would have been awarded under section 32O; and(ii)if the employee has been dismissed in any of the circumstances mentioned in section 32A(1)(c)—the amount of compensation that would have been awarded under section 32P; and(b)if the employee has been dismissed in any of the circumstances mentioned in section 32A(1)(c), a sum that is the lesser of the following—(i)$72,500;(ii)3 times the employee’s average monthly wages as calculated in accordance with section 32NB."

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

"(2)In determining the amounts mentioned in subsection (1)(a)(i) and (ii), the court or Labour Tribunal must not take into account the sum mentioned in subsection (1)(b)."

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

"(10)If the employer pays the sums mentioned in section 32NA(1) by the date specified for that purpose in an order for reinstatement or re-engagement (as varied under section 32PA or 32PC, if applicable), the employee is not entitled to enforce the other terms of the order (as so varied, if applicable)."

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:

"(2)The employer against whom the principal order is made may apply for it to be varied to the effect that the employer is relieved from the liability to pay the sum mentioned in section 32NA(1)(b)."

Section 32PC(3) states the ground:

"(3)An application under subsection (2) may only be made on the ground that it is no longer reasonably practicable for the employer to reinstate or re-engage the employee in accordance with the principal order—(a)because of reasons attributable to the employee; or(b)because, since the court or Labour Tribunal last found that reinstatement or re-engagement of the employee is reasonably practicable, a change of circumstances has occurred beyond the employer’s control."

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.

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):

"(2)Terminal payments under this section refer to the statutory entitlements under this Ordinance that the employee has not been paid and that the employee is entitled to upon the termination of the contract of employment, or that he might reasonably be expected to be entitled to upon the termination of the contract of employment had he been allowed to continue with his original employment or original terms of the contract of employment to attain the minimum qualifying length of service required for the entitlements under this Ordinance."

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

"(b)any payment in lieu of notice payable under Part II, in the case of a dismissal without due notice;"

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):

"(4)Notwithstanding that the employee has not attained the qualifying length of service required for the entitlements under this Ordinance, the court or Labour Tribunal may make an award for terminal payments under subsection (1) or (5) which shall be reckoned according to the actual length of time that the employee has been employed under that contract of employment with the employer."

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):

"(1)Subject to section 32M, the court or Labour Tribunal may, whether or not it has made an award of terminal payments under section 32O, make an award of compensation to be payable to the employee by the employer as it considers just and appropriate in the circumstances, if—(a)neither order for reinstatement nor order for re-engagement under section 32N is made; and(b)the employee is dismissed by the employer in contravention of section 15(1), 21B(2)(b), 33(4B) or 72B(1), section 6 of the Factories and Industrial Undertakings Ordinance (Cap. 59), or section 48 of the Employees’ Compensation Ordinance (Cap. 282), whether or not the employer has been convicted of the offence in respect of the dismissal."

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):

"(4)The amount of an award of compensation under this section shall be such amount as the court or Labour Tribunal considers just and appropriate but no such award shall exceed an amount of $150,000."

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:

"(1)If—(a)an award of a tribunal provides, in whole or in part, for the payment by an employer of any specified entitlement (whether or not the specified entitlement is payable only on any condition being met); and(b)the employer wilfully and without reasonable excuse fails to pay—(i)any sum payable under the award (other than a sum to which subparagraph (ii) applies) within 14 days after the date of the award; or(ii)any sum payable under the award that is, by the terms of the award, payable otherwise than on the date of the award, within 14 days after the date on which the sum is, by those terms, payable, the employer commits an offence and is liable on conviction to a fine of $350,000 and to imprisonment for 3 years."

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)—"):

"(a)after a pregnant employee has served notice of pregnancy on her employer, the employer shall not terminate her continuous contract of employment otherwise than in accordance with section 9 during the period from the date on which her pregnancy is confirmed by a medical certificate to the date on which she is due to return to work on the expiry of her maternity leave or the date of cessation of pregnancy (otherwise than by reason of confinement);"

"(b)if a pregnant employee has served such notice on her employer immediately after being informed of the termination of her contract of employment where the termination was made otherwise than in accordance with section 9 by her employer, the employer shall immediately withdraw the termination or notice of termination in which event the termination or notice of termination shall be treated as if it had not taken place."

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):

"(1A)Where in a contract of employment of a pregnant employee, whether in writing or oral, it has been expressly agreed that the employment is on probation, subsection (1) shall not prevent the termination by an employer of such contract for reasons other than pregnancy during the period of probation if the period does not exceed 12 weeks, or during the first 12 weeks of probation if the period of probation exceeds 12 weeks."

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):

"(b)terminates the contract of employment of, penalizes, or otherwise discriminates against, an employee by reason of his exercising any such right, shall be guilty of an offence and shall be liable on conviction to a fine at level 6."

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:

"appropriate time (適當時間) means, in relation to an employee taking part in any activities of a trade union, time which either—(a)is outside his working hours; or(b)is a time within his working hours at which, in accordance with arrangements agreed with or consent given by or on behalf of his employer, it is permissible for him to take part in those activities;"

(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):

"(4B)Subject to subsection (4BAA), an employer shall not terminate a contract of employment of an employee otherwise than in accordance with section 9 on any sickness day taken by the employee in respect of which sickness allowance is payable under this section."

Cap. 57 s.72B(1):

"(1)No employer shall terminate, or threaten to terminate, the employment of, or in any way discriminate against, any of his employees by reason of the fact that the employee has—(a)given evidence, or agreed to give evidence, in any proceeding for the enforcement of this Ordinance;(b)given information to a public officer in any inquiry made by such officer for the purposes of or in connection with the enforcement of this Ordinance;(c)given evidence, or agreed to give evidence, in any proceeding relating to an accident to an employee arising out of and in the course of his employment or for the breach of a statutory duty in relation to the safety of persons at work; or(d)given information to a public officer in any inquiry made by such officer for the purposes of or in connection with an accident to an employee arising out of and in the course of his employment or for the breach of a statutory duty in relation to the safety of persons at work."

Cap. 59 s.6:

"No employer shall terminate, or threaten to terminate, the employment of, or in any way discriminate against, any of his employees by reason of the fact that the employee has—(a)given evidence, or agreed to give evidence, in any proceeding for the enforcement of any of the provisions of this Ordinance; or(b)given information to a public officer in any inquiry made by such officer for the purposes of or in connexion with the enforcement of any of the provisions of this Ordinance."

Cap. 282 s.48(1):

"(1)An employer shall not, without the consent of the Commissioner—(a)terminate the contract of service or apprenticeship of an employee who has suffered incapacity in circumstances which entitle him to compensation under this Ordinance; or(b)give notice to the employee of such termination, before—(i)the Commissioner has issued a certificate under section 16A(2), to the employer and the employee; or(ii)the employer has entered into an agreement under section 16CA(1), with the injured employee; or(iii)an Ordinary Assessment Board or a Special Assessment Board, as the case may be, has issued a certificate under section 16F or 16G(3), to the employee, the employer and the Commissioner, whichever occurs first."

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

"(1A)Further to subsection (1), an employer shall not, without the consent of the Commissioner—(a)terminate the contract of service or apprenticeship of an employee who has suffered temporary incapacity for a period not exceeding 3 days in circumstances which entitle him to compensation under this Ordinance; or(b)give notice to the employee of such termination, before—(i)the period of temporary incapacity has expired; and(ii)the compensation has been paid under section 10 to the employee or to the Court."

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 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.

9. Discrimination is not inside Part VIA

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

"This Part shall not apply to acts of—(a)sex discrimination within the meaning of the Sex Discrimination Ordinance (Cap. 480);(b)discrimination against persons on the ground of their or their associates’ disability within the meaning of the Disability Discrimination Ordinance (Cap. 487);(c)discrimination against persons on the ground of family status within the meaning of the Family Status Discrimination Ordinance (Cap. 527); or(d)discrimination against a person on the ground of the race of the person or his or her near relative within the meaning of the Race Discrimination Ordinance (Cap. 602)."

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.

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

The Labour Tribunal, and only the Labour Tribunal

Section 32J(1):

"(1)Subject to this section, the Labour Tribunal established under the Labour Tribunal Ordinance (Cap. 25) shall have jurisdiction to inquire into, hear and determine a claim made by an employee under this Part in accordance with this Part and with that Ordinance."

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

"(3)A claim under this Part over which the Labour Tribunal has jurisdiction may be transferred under section 10 of the Labour Tribunal Ordinance (Cap. 25) but may be so transferred only to the Court of First Instance or the District Court."

"(4)The Court of First Instance or the District Court may, for a claim so transferred to it, make all or any of the orders and awards provided for under sections 32N, 32O, 32P, 32PA and 32PC."

"(5)Apart from a transfer under subsection (3), neither the Court of First Instance nor the District Court has jurisdiction over a claim under this Part."

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:

"(1)The tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule."

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

"other than a claim specified in the Schedule to the Minor Employment Claims Adjudication Board Ordinance (Cap. 453)."

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:

"Subject to any provision in this Ordinance (including section 7), the Board shall have jurisdiction to inquire into, hear and determine a claim—"

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

"(1)Subject to subsection (3), the Board shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule."

Paragraph (c) then reads:

"(c)the right of action of which arose on or after 17 September 2021, or not wholly before that date, and made by not more than 10 claimants for a sum of money not exceeding $15,000 per claimant, which arises from—(i)the breach of a term, whether express or implied or (if applicable) arising by force of section 10(1) of the Minimum Wage Ordinance (Cap. 608), of a contract of employment, whether for performance in Hong Kong or under a contract to which the Contracts for Employment Outside Hong Kong Ordinance (Cap. 78) applies;(ii)the breach of a term, whether express or implied or (if applicable) arising by force of section 10(1) of the Minimum Wage Ordinance (Cap. 608), of a contract of apprenticeship;(iii)the failure of a person to comply with the Employment Ordinance (Cap. 57), the Minimum Wage Ordinance (Cap. 608) or the Apprenticeship Ordinance (Cap. 47);(iv)any question as to the right of an employee to a severance payment under Part VA of the Employment Ordinance (Cap. 57) or the amount of such payment; or(v)any question as to the right of an employee to payment of wages by a person other than the employee’s employer under Part IXA of the Employment Ordinance (Cap. 57) or the amount of such payment."

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

"7.A claim for remedies under Part VIA of the Employment Ordinance (Cap. 57)."

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

"Notwithstanding paragraphs 1 and 2, the tribunal shall not have jurisdiction to hear and determine a claim for a sum of money (whether liquidated or unliquidated), or otherwise in respect of a cause of action, founded in tort whether arising from a breach of contract or a breach of a duty imposed by a rule of common law or by any enactment."

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 cited 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):

"(2)A barrister or solicitor shall have a right of audience before the tribunal only if he is—(a)acting on his own behalf as a claimant or a defendant; or(b)appearing before the tribunal on behalf of an offender for the purpose of section 42."

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

"(1)The following persons shall have a right of audience before the tribunal—(a)a claimant or defendant;(b)a tribunal officer;(c)an authorized officer;(d)an officer or servant of an unincorporated or incorporated company or a member of a partnership, if the company or partnership is a party;\*(e)with the leave of the tribunal, an office bearer of a registered trade union or of an association of employers who is authorized in writing by a claimant or defendant to appear as his representative; and(f)a public officer, not being a barrister or solicitor, who appears on behalf of the Secretary for Justice, if the Secretary for Justice is a claimant or a defendant."

No conciliation, no hearing

Labour Tribunal Ordinance s.15(1):

"(1)The tribunal shall not hear a claim until a certificate in the prescribed form signed by a tribunal officer or an authorized officer is filed or produced to the effect that—(a)one or more of the parties has refused to take part in conciliation;(b)conciliation has been attempted but no settlement has been reached;(c)conciliation is unlikely to result in a settlement being reached; or(d)conciliation may prejudice the interests of a party."

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):

"(2)A reference in this Part to an award of a tribunal includes—(a)a settlement treated as an award of the Labour Tribunal under section 15(9) of the Labour Tribunal Ordinance (Cap. 25); and(b)a settlement treated as an award of the Minor Employment Claims Adjudication Board under section 14(4) of the Minor Employment Claims Adjudication Board Ordinance (Cap. 453)."

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

"(3)A reference in this Part to the date of an award means, in relation to a settlement referred to in subsection (2)—(a)the date of filing of the settlement in the Labour Tribunal under section 15(8) of the Labour Tribunal Ordinance (Cap. 25); or(b)the date of filing of the settlement with the Registrar of the Minor Employment Claims Adjudication Board under section 14(3) of the Minor Employment Claims Adjudication Board Ordinance (Cap. 453)."

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.

The arithmetic below 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.

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.)

Most relevant to: anyone weighing whether a claim is worth running. Part VIA fixes only two amounts, both hang on the same gate — whether the dismissal contravened one of the six provisions named in s.32A(1)(c) — and one of them can be relieved under s.32PC.

Frequently Asked Questions

Next Steps

• To understand what statutory payments an employer must make on termination, see our guide Severance Pay and Long Service Payment in Hong Kong (Severance Pay and Long Service Payment).
• To understand how the Labour Tribunal hears these matters, see The Labour Tribunal: Which Claims It Takes and How They Run .
• See also employment contracts and restrictive covenants , or browse our Hong Kong employment law overview .
• Official sources: the Labour Department and Equal Opportunities Commission of the Hong Kong Government.

Sources

• Employment Ordinance (Cap. 57), ss. 2(1), 3(2), 6, 7, 9, 15, 21B, 32A–32Q, 33(4B), 43N, 43P, 72B (version in force 14 May 2026)
• Labour Tribunal Ordinance (Cap. 25), ss. 7, 15, 23 and the Schedule (version in force 28 March 2025)
• Employees’ Compensation Ordinance (Cap. 282), s. 48 (version in force 14 May 2026)
• Factories and Industrial Undertakings Ordinance (Cap. 59), s. 6 (version in force 28 April 2023)
• Minor Employment Claims Adjudication Board Ordinance (Cap. 453), s. 5 and the Schedule (version in force 17 September 2021)