What steps must employers follow when dismissing employees in regulated sectors?
The Hong Kong Court of Appeal recently dealt with an employment law matter that questioned whether employers must follow industry-specific regulations when ending employment.
The worker argued that her dismissal was unlawful because her employer failed to comply with statutory requirements that gave additional protections beyond standard employment laws.
The case highlighted important questions about job security, proper dismissal procedures, and how different laws interact in employment relationships.
The dispute started in July 2013 at an aided primary school when the incorporated management committee (IMC) immediately dismissed their principal.
She had worked at the school since 1986, first as a certificated mistress before becoming principal in 2007. Her employment contract included standard conditions and referenced both the Education Ordinance and Employment Ordinance.
The IMC issued 15 warnings between 2012 and 2013 about various management issues. These included not following procurement procedures, unauthorised use of school facilities, and improper staff employment practices.
The principal challenged her dismissal, arguing it violated sections 55-57 of the Education Ordinance. These sections outlined specific conditions for ending a principal's employment, including registration cancellation, resignation, approval withdrawal by the Permanent Secretary for Education, or approval of another teacher as principal.
Under the Education Ordinance, school principals had particular job security protections. An earlier case had established that "the effect of the Ordinance is to underpin the position of school principals by imposing restrictions on the freedom of their employers, the management committees of their schools, to remove them from office."
The IMC argued these education laws didn't create private employment rights and that regular employment laws provided enough protection. They said requiring additional approvals would conflict with their right to summarily dismiss employees.
The principal maintained that her position could only end through specific events listed in section 55 of the Education Ordinance. This meant even summary dismissal had to follow these requirements.
The Court examined section 55's requirement that a principal "shall hold office until" certain events occurred. This mandatory wording suggested specific legal protections beyond standard employment rights.
The Court stated: "It is difficult to see how [the employer] can claim that notwithstanding such clear provision of the law, it can nevertheless terminate [the worker's] appointment as principal with immediate effect simply by issuing a dismissal letter. That would fly in the face of section 55."
This showed that while the Employment Ordinance allowed summary dismissal, it didn't override other legal requirements. The Court noted: "Section 55 of the Education Ordinance does not impose a duty on anyone to do anything or to bring about a certain state of affairs, but mandates that a principal shall hold office until a specified event."
The Court emphasised the importance of following proper procedures: "Unless exempted, the requirements in section 57A are applicable. They were introduced by legislative amendments in 2004, for the purposes of ensuring a fair and open selection procedure."
They clarified that what "the Permanent Secretary was entitled to do is a matter of law; what she would have done is a matter of fact." This distinguished between legal powers and factual circumstances in employment decisions.
The Court found the immediate dismissal unlawful for not following the Education Ordinance's requirements. The principal received damages covering her salary and benefits from the dismissal date until her original retirement date, with interest.
