13 April, 2018
The High Court considered in the case of Voahanginiaina Aimee Chantal v Leung Man Kai (HCLA 27/2016) the situation where an employer paid a portion of the employee’s salary to a creditor of the employee in satisfaction of a debt owed by the employee to the creditor.
The Court held that if an employer makes a payment out of the employee's salary to a third party on behalf of the employee in satisfaction of the employee's obligation to such third party, this amounts to a deduction from wages which is prohibited under section 32 of the Employment Ordinance unless an express legislative exception is applicable.
As there is no such exception for a payment to a third party in satisfaction of the employee’s liability (even with the employee’s consent), the Court rejected the employer's arguments and also opined that if there were consent (or a request) from employees to make deductions from wages, then the employer could always make an application to the Commissioner for Labour for approval, which would be an express exemption under the Employment Ordinance.
This illustrates that the Courts in Hong Kong adopt a restrictive approach to the interpretation of the Employment Ordinance in relation to the prohibition against deductions from wages.
For further information, please contact:
Samantha Cornelius, Linklaters
samantha.cornelius@linklaters.com
