Background<\/p>\n
In the case of Life Young Medical Group Ltd (formerly known as Life Young Aesthetic Medical Ltd) (\u58f9\u5fc3\u99ff\u7f8e\u91ab\u5b78\u96c6\u5718\u6709\u9650\u516c\u53f8\u524d\u7a31\u70ba\u58f9\u5fc3\u99ff\u7f8e\u91ab\u5b78\u6709\u9650\u516c\u53f8) v Chiu Suet Man (\u8d99\u96ea\u96ef), the Court considered whether an employee\u2019s resignation amounted to an immediate termination (where she would need to make a payment in lieu of notice) or whether her notice period was still up for discussion with her employer.<\/p>\n
The dispute arose from the circumstances surrounding the termination of employment of Ms. Chiu (the \u201cEmployee\u201d), who previously served as a Centre Manager at Life Young Medical Group Ltd (the \u201cCompany\u201d).\u00a0 The Employee\u2019s employment contract included a termination clause allowing either party to end the employment by giving one month\u2019s notice or payment of one month\u2019s salary in lieu.<\/p>\n
The material facts played out in rapid succession over a three-day period in February 2022.\u00a0 On 15 February 2022, the Company terminated the employment of the Employee\u2019s husband, who was then serving as the Company\u2019s Chief Executive Officer. The Employee later joined this meeting and indicated that she would leave the Company with her husband.\u00a0 The Employee testified that she had asked the Company at that time to consider waiving the contractual notice period so that she could depart immediately.<\/p>\n
Later that night, the Employee emailed the Company (hereinafter the \u201c15 February email\u201d) stating that she was tendering her resignation, to take effect on 15 February 2022. While the Employee used the words \u201cwith immediate effect\u201d (\u201c\u7acb\u5373\u751f\u6548\u201d), she also included an express request that the Company \u201cmutually agree\u201d to immediately terminate her employment without notice, adding in a WhatsApp message to her colleague that she wished for a \u201cgood and amicable parting\u201d (\u201c\u597d\u4f86\u597d\u53bb\u201d). Shortly after sending the email, the Employee exited a number of WhatsApp group chats relating to the company\u2019s business.<\/p>\n
The next day, on 16 February, the Employee did not report to the office.\u00a0 She sent a further email that evening which referred to her \u201cfinal payment\u201d and attached a spreadsheet setting out the calculations for payments due to her. She wrote at the top of the spreadsheet \u201cMutually agree to terminate employment on 15th February 2022 without notice by either party. Email sent to Charlie on 15th February\u201d.<\/p>\n
On 17 February, she again failed to attend work. That afternoon, she sent two emails asking the Company for a response and that she assumed she was still employed. In the second 17 February email, she clarified that, barring any agreement on the waiver of notice, her last day of employment would be 14 March 2022 (that is, serving a one-month notice period from 15 February).<\/p>\n
Later on the same day, the Company replied by email (the \u201cCompany\u2019s 17 February email\u201d), taking the position that the Employee had, by her 15 February communication, already terminated the employment contract with immediate effect.\u00a0 As a result, the Company demanded the Employee pay one month\u2019s salary in lieu of notice, pursuant to the employment contract\u2019s termination clause.<\/p>\n
Both parties commenced proceedings in the Labour Tribunal.\u00a0 The Employee sought outstanding payments, contending she had validly given notice (with her final day intended to be 14 March 2022) and had merely requested a waiver that was never agreed. The Company alleged that the Employee\u2019s initial email, exit from certain WhatsApp work groups, and non-attendance at work for two days demonstrated that she had resigned immediately.<\/p>\n
The Presiding Officer in the Labour Tribunal found in the Employee\u2019s favour, concluding that the 15 February email did not constitute an irrevocable, immediate resignation. The Presiding Officer also noted that the Employee had used the words \u201cas mentioned earlier\u201d (\u201c\u5982\u524d\u6240\u8aaa\u201d) in the 15 February email, which should mean that something had been discussed before. The Presiding Officer also took the view that an employee would usually choose to serve out the notice period instead of making a payment in lieu unless they had a job offer which could not wait.<\/p>\n
The Tribunal therefore found that the Employee had tendered a notice of resignation effective from 15 February, with the subset question of whether the notice period could be waived pending the Company\u2019s response.\u00a0 By sending the 17 February email insisting on one month\u2019s payment in lieu and making no provision for the Employee to work through her notice, the Company wrongfully terminated the employment contract.Following the Tribunal\u2019s decision in favour of the Employee, the Company appealed to the Court of First Instance, where the Court dismissed both appeals and upheld the Labour Tribunal\u2019s decision.<\/p>\n
Key Findings<\/p>\n
The central issue at the Court of First Instance was whether the Employee made clear that her intention was to resign immediately or whether she was simply requesting the Company\u2019s consent to waive the notice period.\u00a0 While the Employee\u2019s 15 February email used language that could be read as announcing an immediate departure (\u201c\u7acb\u5373\u751f\u6548\u201d), the email and subsequent communications also contained repeated references to seeking a waiver.<\/p>\n
The Employee\u2019s conduct over the following days was somewhat equivocal: on the one hand, she did not attend work or rejoin any work-related communication channels; yet, on the other, she sent multiple emails specifically awaiting the Company\u2019s stance on the waiver question.<\/p>\n
In affirming the Labour Tribunal\u2019s decision, the Court of First Instance emphasised the Presiding Officer\u2019s conclusion, namely, that the Employee extended a resignation contingent on a waiver but was still willing to serve her notice, which was adequately supported by the evidence.\u00a0 Although the Company strongly argued that the Employee\u2019s exit from WhatsApp groups and her absence from the office on 16 and 17 February reinforced the interpretation of an immediate resignation, the Court concluded that the Tribunal\u2019s finding was equally reasonable.\u00a0 Indeed, the Company\u2019s position might also be \u201creasonable,\u201d but it could not be said that the Labour Tribunal\u2019s conclusion, favouring the Employee, was the only logical outcome on the evidence.\u00a0 Accordingly, there was no legal basis for disturbing the Tribunal\u2019s decision on appeal.<\/p>\n
With regard to the question of \u201cwrongful termination\u201d, the Court noted that once the Employee had indicated she was prepared to serve the notice period (absent a waiver), the Company\u2019s 17 February email insisting on payment in lieu effectively denied her that right.\u00a0 The Tribunal had found that an employee retains the right to choose whether to serve their contractual notice period or compensate the employer in lieu, and it was improper for the Company to unilaterally insist on a payment when the Employee had already stipulated her willingness to serve out her notice if no waiver was forthcoming.<\/p>\n
The appellate court concluded that the Company\u2019s stance, as set out in the 17 February email, amounted to an improper termination of employment and that the demand for compensation in lieu from the employee was unjustified.<\/p>\n
Takeaways for Employers<\/p>\n
This case illustrates several key points for employers in Hong Kong.<\/p>\n
Firstly, whether a resignation has been tendered with immediate effect or with notice requires a careful, objective reading of all communications. An employee might use \u201cimmediate\u201d language in an email but still seek confirmation or consent from the employer regarding a waiver of the notice period. It is therefore crucial to examine the entire factual matrix before concluding that an employee has irrevocably resigned with immediate effect.<\/p>\n
Secondly, employees in Hong Kong generally have a statutory right to choose how they terminate their employment (i.e. by working through their notice or making a payment in lieu). An employer that receives a request by an employee to \u201cwaive\u201d the notice period must clarify with the employee promptly whether such a waiver is agreed.\u00a0 If the employer fails to clarify, or if the employee\u2019s correspondence indicates that the employee wishes to serve any unwaived notice period, the employer risks inadvertently terminating the employee by insisting on a payment in lieu.<\/p>\n
An employer\u2019s prompt communication when receiving ambiguous or equivocal letters of resignation is paramount.\u00a0 In this case, the Company\u2019s delayed and insufficiently clear response resulted in a situation where the Employee was found not to have truly resigned with immediate effect.\u00a0 Had the Company positively accepted the Employee\u2019s request (or refused it with clarity) at the earliest opportunity, the outcome might well have been different.<\/p>\n
Finally, the case underscores the importance of consistency in an employee\u2019s actions.\u00a0 While the non-attendance at work undermined the Employee\u2019s claim to some extent, it was outweighed in the Tribunal\u2019s view by her written, repeated requests for a waiver of notice and her ultimate statement that she would serve the notice period in the absence of any waiver.<\/p>\n
Employers in Hong Kong should ensure that they are vigilant in evaluating both the written evidence and behaviour of employees when they indicate their wish to resign. Any uncertainty during a termination of employment is best resolved through prompt, explicit communication so as to avoid unnecessary disputes.\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"Background In the case of Life Young Medical Group Ltd (formerly known as Life Young Aesthetic Medical Ltd)…\n","protected":false},"author":2,"featured_media":3675,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13],"tags":[64,63,99,180],"class_list":{"0":"post-3674","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-jobs","8":"tag-au","9":"tag-australia","10":"tag-business","11":"tag-jobs"},"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts\/3674","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/comments?post=3674"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts\/3674\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/media\/3675"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/media?parent=3674"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/categories?post=3674"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/tags?post=3674"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}