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Is it me or is this nuts?

  1. #17
    carang's Avatar
    carang is offline Registered User
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    am i missing something?

    the helper has already quit (given her notice)... how can she "change her mind"? surely if she has already given notice and quit the employer is no longer under any legal obligation to retain her if she "changes her mind"....

  2. #18
    Liquorice is offline Registered User
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    Quote Originally Posted by lesliefu View Post
    unfortunately i don't believe that terminating a pregnant worker, no matter what the cause will go down easy for the employer and the repercussions for the employer will be very tedious - think the best way would be to "convince" her to leave amicablely" and sign any papers..don't think a notary public is really all that useful in your case but as long as you have her sign papers, date them and have a witness to it, then that in itself should be a legal document that will hold her accountable and take the burden of releasing a pregnant employee. personally, when i was not renewed after returning upon my maternity leave (reason being I was not doing my job as stipulated in my contract - i was even THERE to do my job- i was on leave) I made sure to make a BIG fuss about it even though the end result was the same - I just had to make some noise shall we say.

    she's probably finding excuses to leave anyways - but doesn't want to say it because she loses all her "benefits" if you were to fire her instead. could you just pay her off so she doesn't lose them?
    I think you are right that it will always be hard. The labour department won't say anything concrete about when I have the right to terminate. I even asked whether I can terminate if she threatens my child's or my own safety and they won't even conclusively say yes then! I think it is on a case by case basis. I have been told by an agency that the problem is that once a case is brought before the labour department then it just goes on for months and months and months.

    Regarding paying her off, when I first found out she was pregnant I offered to pay her salary for the rest of her pregnancy and her maternity leave from 6 months pregnant if she would resign then - about $23000 - as I am starting a very difficult uni course in September and wanted all living arrangements settled by then. She declined because she has some misconception that her child will have residency rights in Hong Kong if s/he is born here. I have told her this isn't the case but I don't think she is convinced.

    To be honest, I am no longer inclined to pay her off because she has rejected all attempts we have made to deal with the situation in a way that benefits both of us and her work and her attitude are getting increasingly worse. She was only working for us for a few months before she got pregnant, I already spent a fortune sending her on childcare courses, CPR/healthcare courses, buying them special selected furniture, getting them set up with a landline and TV satellite etc. In conversations before, she had said they would live-out if we bought her husband a car to drive to and from work in. It seems the more we give, the more they expect.

  3. #19
    Liquorice is offline Registered User
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    Quote Originally Posted by carang View Post
    am i missing something?

    the helper has already quit (given her notice)... how can she "change her mind"? surely if she has already given notice and quit the employer is no longer under any legal obligation to retain her if she "changes her mind"....
    No, she hasn't quit. She has agreed that she will quit in two months. I am having her sign a letter saying she will quit on that given date but I can't process anything with immigration until one month before.

  4. #20
    carang's Avatar
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    buy him a car???? is she fricking insane???? seriously?

    she needs a kick in the axx, if you ask me.

    get from her IN WRITING that she is quitting as of xx date. then once you get to the month remaining, then take that paper to immigration immediately.

    also, do a search on the immigration website about residency rights for babies born in hk... also contact immigration and ask them if they can write a response to your enquiry... then print it off and give it to her.

    it sounds to me like this woman is more trouble than she's worth. she also sounds like the kind of woman who would create problems for you.

    i am not one to suggest hidden cameras, but in this case, it might be a good idea. then you can PROVE that you didn't coerce her to sign anything and also you get her ridiculous demands on tape.

    good luck, i think you will need it!

  5. #21
    lesliefu is offline Registered User
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    would agree with carang on this...if she's willing to sign and write down her last day, then definitely do that! too much hassle it seems to me, and it doesn't appear she's worth any of that problems she's creating.

  6. #22
    Portia is offline Registered User
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    It is not correct that a pregnant employee cannot have her employment terminated. It's just that you cannot terminate with notice or by payment in lieu; she can still be dismissed summarily (without notice or payment in lieu) if circumstances justify it. The difficulty would to be to prove that circumstances justify it if she brings a claim against you in the Labour Tribunal. This article might be of assistance: http://www.mayerbrown.com/publicatio...4913&nid=10353.

  7. #23
    thanka2 is offline Registered User
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    I am almost definitely sure that your helper's child will have no residency rights in Hong Kong UNLESS the child's father is a resident--then there is a possibility. Is her husband either a temporary or permanent resident in Hong Kong? If he is a temporary resident then he can apply for the child to have a visa here. If he is a permanent resident, he can apply for the child to have permanent residency. Otherwise, foreign domestic helpers have literally no way to become residents in this city--a friend who had a long-term Filipina girlfriend told me that even if he married her she still would not be able to get residency because she had come here as a FDH. You need to research this and find out for sure. The HK Gov. is not stupid and they have purposely designed the system to prevent FDH from coming here, getting pregnant and then claiming residency for their children--it's a social welfare nightmare for them in that case.

    About the car and all the other ridiculous demands--and the fact that she became pregnant after only working for you for a couple of months....wow. Let me say, that the whole thing that she got pregnant so soon after starting to work for you won't look good for her at all in front of any labour tribunal. I'll tell you why...generally, the rules are that there is a "blackout" period of about 10 months when you sign a new contract with a company--depending on your company. I work for the government in an indirect way and because I happened to give birth to my child when I was only 7 months into a new contract, although I was guaranteed maternity leave (they can't deny you that 10 weeks, by law) I had to take UNPAID maternity leave. This is because I was only 3 months shy of having worked for the company for 10 months when I gave birth. Basically, no one in HK looks favorably upon a woman getting hired in a job and then immediately getting pregnant or worse still (which was my case) getting hired when she is already pregnant. I just happen to have very lenient and understanding bosses--most HK bosses aren't. It's going to look like a total scam on the part of the helper if she takes it before a court. Believe me.
    “Many women have described their experiences of childbirth as being associated with a
    spiritual uplifting, the power of which they have never previously been aware …
    To such a woman childbirth is a monument of joy within her memory.
    She turns to it in thought to seek again an ecstasy which passed too soon.”

    ~ Grantly Dick-Read (Childbirth Without Fear)

    Mother of Two
    JMW, boy, born November 29, 2007, 9:43 pm, USA
    MJW, girl, born March 17, 2011, 4:14 pm, HK

  8. #24
    Liquorice is offline Registered User
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    Quote Originally Posted by Portia View Post
    It is not correct that a pregnant employee cannot have her employment terminated. It's just that you cannot terminate with notice or by payment in lieu; she can still be dismissed summarily (without notice or payment in lieu) if circumstances justify it. The difficulty would to be to prove that circumstances justify it if she brings a claim against you in the Labour Tribunal. This article might be of assistance: http://www.mayerbrown.com/publicatio...4913&nid=10353.
    Hmmm. And this also highlights my concern about her resignation - in the Chang v Wyeth case her resignation was considered by the court as equivalent to constructive dismissal by the company given she felt she had no choice.

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