Can I dismiss someone during probation in Hong Kong

Can I Dismiss Someone During Probation

Yes, you can dismiss someone during probation in Hong Kong. The Employment Ordinance (Cap. 57) does not give an employee under probation the full protections against unreasonable dismissal that apply after a continuous contract is established. However, you must still follow the notice terms in the contract of employment or provide payment in lieu of notice. A probationary employee does not have the right to claim unreasonable dismissal simply because they are dismissed during the probation period, but the dismissal must comply with the contractual notice requirements.

Dismissing Employee During Probation Hong Kong

When dismissing an employee during probation in Hong Kong, the key question is what the employment contract says about notice. The Employment Ordinance (Cap. 57) does not prescribe a minimum notice period for probation. Instead, the contract sets the notice period. If the contract is silent, the common law requires reasonable notice. A typical probation clause gives either seven days' notice or payment in lieu of that notice. You must give whatever the contract states, or pay the employee for that period instead of requiring them to work it.

Probation Period Dismissal Hong Kong

A probation period dismissal in Hong Kong does not require you to show cause or misconduct. The employer's right to terminate during probation is broader than after probation ends. However, if the contract states a specific probation period, you cannot extend it unilaterally unless the contract allows an extension. If you dismiss after the probation period ends without having confirmed the employee, the full termination protections under the Employment Ordinance may apply, including the requirement for a valid reason and the risk of an unreasonable dismissal claim.

Hong Kong Probation Termination Rights

Your probation termination rights in Hong Kong depend on whether the employee is under a continuous contract. An employee who has worked for four weeks or more, with at least 18 hours in each week, is under a continuous contract under the 4-18 rule. Once a continuous contract exists, the employee qualifies for certain statutory entitlements such as rest days and statutory holidays. However, the right to claim unreasonable dismissal only applies after the probation period ends and the employee has been continuously employed for the period stated in the contract. During probation, you can dismiss without giving a reason, as long as you give proper notice or payment in lieu.

Ending Probation Early Hong Kong

Ending probation early in Hong Kong is straightforward if you follow the contract. You must give the notice period stated in the contract or pay in lieu. If the contract says one week's notice, you give one week or pay one week's wages. If the contract says no notice during probation, you can dismiss immediately. However, if the contract is silent, the common law requires reasonable notice, which for a short probation period is usually one week. Always check the contract before dismissing.

Summary Dismissal During Probation

Summary dismissal during probation is possible only for gross misconduct. Summary dismissal means terminating without notice or payment in lieu. The Employment Ordinance allows summary dismissal where an employee commits a serious breach of duty, such as dishonesty, violence, or wilful disobedience. During probation, the same rules apply. If you dismiss summarily without a valid ground, the employee may claim wrongful dismissal and seek damages for the notice period they should have received. Do not use summary dismissal simply because the employee is on probation; use it only where the conduct justifies it.

Practical Steps to Avoid Disputes

To avoid disputes when dismissing during probation, follow these steps:

• Check the employment contract for the probation notice period.
• Give the required notice or pay in lieu of notice.
• Confirm the dismissal in writing, stating the effective date.
• Calculate and pay all outstanding wages, including any accrued but untaken annual leave.
• Issue the employee's final pay within seven days of the termination date.
• Notify the Labour Department if required, and file Form IR56F with the Inland Revenue Department if the employee ceases employment.

If you fail to give proper notice or payment in lieu, the employee may bring a claim to the Labour Tribunal for wages in lieu of notice. The claim is for the contractual amount, not for unreasonable dismissal. Keep a copy of the contract and the dismissal letter to show you complied with the terms.