Reinstatement


INTRODUCTION
Many of our clients have had their employment illegally terminated when their employers find out they are pregnant. Our Access to Justice team assists on these types of cases to make sure the client is not discriminated against. For many, this involves suing the employer in court and that process is long and full of obstacles. For others, the employer might agree to rehire the client. This first half of the year, three of our clients have been reinstated as domestic workers shortly after their termination due to the intervention of the Access to Justice team.

ARTICLE
For foreign domestic workers (FDWs), losing their job when they are pregnant doesn’t just mean losing their only, and often main, source of income for their family back in their home country. It also means they lose their employment visa and access to subsidized healthcare, meaning giving birth can cost up to around HK$100,000. They might also become homeless.

A FDW who has been terminated due to her pregnancy can bring wrongful dismissal and sex discrimination claims in the courts. However this process often takes months, or even years, and in the meantime, she has no income and no access to subsidized healthcare for the birth.

Reinstatement might not be suitable in all cases because it requires both the employer and FDW to agree to it. However, it could be pursued where the parties’ relationship was previously good or where there was some misunderstanding around the termination and the FDW’s rights.

The unique nature of an FDW’s job, being required to stay in her employer’s residence, means that rehiring an FDW is not always possible. Sometimes the relationship would have deteriorated to such an extent that reinstatement is no longer feasible.

But when it is, it means not only that the client stays employed and continues to receive her salary and maternity benefits, but also that she has access to subsidized healthcare in Hong Kong for her delivery — which is often the best result for the client in what can otherwise be a very desperate situation.

The Access to Justice team has a tricky job acting not only as advocate for the client to protect her interests, but also as conciliator to come up with an arrangement that is mutually acceptable to both the client and her employer. Our legally trained team members meet with both sides to explore whether reinstatement is feasible and if so, work out issues like where the worker will spend her maternity leave and where the baby will live.

When Janice,* a Filipino domestic worker, told her employer she was pregnant, she was forced to sign a resignation letter. Later, she went to a Pathfinders education session held at the Philippines Consulate. At that session, she met a member of our Social Welfare team who explained that what her employer had done was illegal.

PathFinders’ Social Welfare and Access to Justice teams worked together with Janice to have her reinstated.
Ideally reinstatement must be achieved in just two weeks. This is because the law in Hong Kong says that a foreign domestic worker is only allow to remain in Hong Kong for two weeks after the date of the termination of her employment.

While it is possible to request a reissuance of a new employment visa, the policy is opaque, and our experience is that the Immigration Department has a lot of discretion on whether or not to grant this.
Whilst the case handlers are tasked with a seemingly impossible task, it is heartening that we have had three successful reinstatement cases this year. Prior to that, there have only be two cases since Pathfinders was founded in 2008.

Moreover, a recent change in the law might mean that we see more cases like these going forward. From October, the Labour Tribunal can order compulsory reinstatement in the event of unlawful termination where the employee agrees to it and it is “reasonably practicable.” Whilst it remains to be seen whether it is practicable or sensible to follow the new Labour Tribunal route to reinstatement in FDW cases, the new law will hopefully help to add to the debate around issues of unlawful termination of pregnant FDWs and the practicality of the live-in rule during FDWs’ maternity leave.

Upon reinstatement, Janice took her maternity leave, initially in Hong Kong before giving birth. Thereafter we assisted the baby to stay three weeks at the hospital until her travel documents were issued as Janice’s employers did not allow the baby to stay in their residence. Thereafter the mother and her baby returned to the Philippines where Janice spent the rest of her maternity leave.

When Janice got back to Hong Kong after her maternity leave, she worked out the duration of her existing contract and has since begun work with a new employer. Today, both Janice and her baby are thriving.

*Names changed to protect privacy