It is apt to remind employers and their responsible persons (e.g. directors, secretaries, managers, etc.) of the liability imposed on them under the Employment Ordinance (EO) where an employee is not timeously paid the payments due to him under the ordinance. The liability could extend to the responsible persons personally, if the offence for non-payment by a corporate employer had been committed with the consent or connivance of such persons, or was attributable to any neglect on their part.
The EO prescribes the time limits for employers to make various payments to employees – for example:
It is a statutory offence committed by the employer if it fails to pay its employees on time. Under the EO, a responsible person could also be personally liable for the offence committed by the employer in the circumstances described above. The personal liability may well be a severe one, extending to imprisonment.
The Labour Department has in the past prosecuted corporate employers and their responsible persons for offences under the EO. The Department continues to do so, in an effort to send a strong message to all employers and their responsible persons that they have to pay wages to employees in accordance with the EO.
The Department has spared no such effort in its recent prosecutions. On 30 September 2022, the Labour Department issued a press release, informing that Cititop failed to pay four employees their wages in accordance with the EO within seven days after the termination of employment contracts (i.e. contravening section 25 of the EO) and the awarded sums which Cititop and its two responsible persons were ordered to pay jointly and severally within 14 days after the date set by the Labour Tribunal (LT) award (i.e. committing an offence under section 43P of the EO). In addition, Cititop and its two responsible persons were also fined $60,000 by the Magistrate.
On 7 October 2022, the Labour Department issued another press release, informing that Berlinetta failed to pay wages to three of its employees within seven days after the expiry of the wage periods (i.e. contravening section 23 of the EO), and end-of-year payments within seven days after the day specified in the employment contract for paying end-of-year payments (i.e. contravening section 11E of the EO). Similarly, the corporate employer and its director were prosecuted and convicted for wage offences under the EO. They were fined $58,800.
In more serious commission of offences under the EO, responsible persons may not only be liable to pay fines – they may also face the possibility of imprisonment, for example, in the situations where an employer fails to pay the LT award (or fails to do so within 14 days after the due date), or, perhaps, when the employer continues to employ the staff when it knew full well that the company could not possibly pay for the staff’s wages. It is important that employers make timely payments to the employees, in compliance with the EO.