Don't be too nice....

S

sniffer

Registered User
We had a helper for over four years. After a few months in her 3rd contract with us, her performance was bad. We have spoken to her a few time. In the end, we have changed her salary to minimum (before it was a few hundreds above the min.)

Due to her poor performance, we have decided to terminate her. As I know she needs a job, I told her that instead of sending her back straight away, I will give her one month notice, and that she can stay in my place until she finds a job. She stayed 6 weeks after I gave her the notice. And of course, I paid her as per HK law even though she insisted that I do not need to pay her on the two weeks she stayed in our place. I paid a little bit extra as I know she needs the money. Why I gave her this chance? She might be a good fit to other families.

A week after I gave her the notice, she sent some stuff back to Indonesia, and it included an item I didn't give to her (a hardly used baby chair that I planned to give to my friend). I found out because she mentioned it to me. I did not make a big fuss out of it as she is still staying in my house and it is a small thing. And she's leaving the week after anyway. Is this stealing? I can report this to the police but I dont have any evidence.

Also I asked her to train the new helper, and she just sabotaged the new helper and I ended up training the new helper (after she left). The new helper is way much better!

A week after she left, I got a letter from labour deparment stating that she is claiming 3 months' salary against me as I have terminated her contract without valid reason. I don't know what is the basis of 3 months' salary.

After being so nice - I could have not given her notice, not given her a chance to find a job, etc - this is what I get.

I also called the agency - and they were also shocked. They are now trying to reach her, but she wouldn't talk to them.

So this is just a warning to others out there. Don't be too nice. And yes, sometimes it is stupid to be nice.
 
Hmmmm. I wonder how these things work out in court--what kind of evidence must a helper bring to prove wrongful termination?

In our case, if our helper was performing so poorly we had to fire her (which we did have to do with our first helper) we couldn't fire her and then let her live with us (that is just waaaay too awkward for us)--we would for sure give her pay instead of 30-days notice and send her packing immediately.

We were instructed by the agency we went through that when we had to fire our helper to do so in a manner in which we oversaw her packing her bags and literally showed her the door. The benefit of using the agency we did was that they were nice enough to come pick her up and help her find a place to stay and look for another employer but that wasn't our problem from thereon.

After having a helper for 2+ contracts she must have really turned sour on you quickly in order to want to fire her, right? Yes, you were quite nice to her to let her stay for 6 weeks instead of 4 and maybe she figured that you just wouldn't see it coming if she went to the labour department. Some people are kind of nasty.
 
Well, she may not have a case against you with regard to being terminated without reason, but I believe you acted illegally to reduce her salary - no matter her performance - after the 3rd contract had started. It's basic labour law you can't unilaterally make someone's working conditions or pay worse without their consent. So effectlvely, it was probably constructive dismissal at the time you reduced her salary.
 
i'm sorry that you are being "dinged".... but, i still like to think the best of people (until i'm proven wrong, of course).
 
Agree with Honky Blues, you can't just reduce her salary and as you did she probably has a claim against you for that UNLESS what you gave her as extra was a performance bonus o ntop of what you signed as her salary on the contract. Performance bonuses do not have to be paid if above average performance is not forthcoming.
 
mummymoo said:
Agree with Honky Blues, you can't just reduce her salary and as you did she probably has a claim against you for that UNLESS what you gave her as extra was a performance bonus o ntop of what you signed as her salary on the contract. Performance bonuses do not have to be paid if above average performance is not forthcoming.
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I tend to think that there was nothing illegal about decreasing her salary. If she is still being paid the minimum wage for helpers and there were no other documents signed regarding salary then it's not really illegal. And let us not forget that people get "demoted" in their jobs all the time for behavior problems--and sometimes demotion comes with a salary decrease.
 
I think it depends entirely on what is written on the contract. If you wrote on the contract that you would pay her $4000 for example, no matter how poorly she performs, it would be illegal to pay her less than that (ie, YOU would be breaking the contract). If you wrote that you were paying her $3700 and actually gave her $4000 each month, then that would be considered a "bonus" and you legally could forego the extra $300 for underperformance. It all depends on what is written in the contract.
 
Perhaps she is claiming entitlement to a severance payment under HK law. If you did not terminate her correctly (i.e. you made her redundant instead of firing her for cause) you may be liable for this amount. Here is a link summarizing employers' obligations:

http://www.labour.gov.hk/eng/public/wcp/ConciseGuide/10.pdf

If the basis of the claim is still unclear, just call the case officer at the labour department and ask what it is. A few of my friends have had disputes with employees and have found the labour dept to be quite impartial and helpful in getting matters resolved in a way that is good for everyone.
 
sniffer said:
Also I asked her to train the new helper, and she just sabotaged the new helper and I ended up training the new helper (after she left). The new helper is way much better!

A week after she left, I got a letter from labour deparment stating that she is claiming 3 months' salary against me as I have terminated her contract without valid reason. I don't know what is the basis of 3 months' salary.

After being so nice - I could have not given her notice, not given her a chance to find a job, etc - this is what I get.

I also called the agency - and they were also shocked. They are now trying to reach her, but she wouldn't talk to them.

So this is just a warning to others out there. Don't be too nice. And yes, sometimes it is stupid to be nice.
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A few points about the quoted bit. I think your warning should be about doing things by the book, rather than not being "too nice". You can be nice and accommodating if you choose and still protect yourself by following the correct procedures if you terminate a helper. For example, you can give a helper one month's written notice of termination, for cause (generally the explanation given is that performance is/ remains poor after attempts to correct), and let them stay in your home to look for another job or whatever for that time.

It actually seems that you made a few mistakes in the termination procedure, likely because you didn't know what the law required. Also, your former helper doesn't have any obligation to speak with the agency (and likely has been advised not to as there is a current labour dispute).

Additionally, regarding the training of your new helper, there are a host of reasons why this often does not work out - sometimes the new helper doesn't want to listen to the outgoing employee as they view them as not an authority figure, sometimes there are communication issues, sometimes the outgoing helper simply doesn't know how to or is not comfortable training another person/ her replacement and in some cases I am sure the outgoing helper just does not want to do it. Unless employer and employee are departing on excellent terms (except perhaps in the case of certain professionals who have obligations arising from contract, law or membership in a professional body), rarely would any institution or employer trust a former or terminated employee to train a replacement, particularly at lower levels.
 
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if you fired an employee for not doing a good job, then why would you want that same employee to train your next one?
 
nicolejoy said:
I think it depends entirely on what is written on the contract. If you wrote on the contract that you would pay her $4000 for example, no matter how poorly she performs, it would be illegal to pay her less than that (ie, YOU would be breaking the contract). If you wrote that you were paying her $3700 and actually gave her $4000 each month, then that would be considered a "bonus" and you legally could forego the extra $300 for underperformance. It all depends on what is written in the contract.
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Yes, this is exactly what I was thinking. We pay our helper a few hundred dollars more a month than what is in her contract but we are not required to pay this amount.
 
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