When mere words are not enough

theSunColumn 20 Aug 2014

We are so good at coining words like “break contract”, “terminate”, “early release”, and so on; and these words continue to carry certain meanings that become part of our every day life that even if they are presumptions, seldom do we attempt to know or to confirm the real meaning and their implications.

Say, for example, “break contract” and “terminate”.

For more than three decades now, we at the Mission continuously try to correct the constant use of the word “break contract”. But as we do so, we noticed that it has continued to the present, even among new arrivals. Upon investigation, we came to know that when migrant workers say “break contract”, the term is used in contrast with the word “terminate”. It is presumed that when one says she is “break contract” it is understood that the initiator of the ending of the contract is she, the worker herself.  When one uses the term “terminate”, it is to mean that the one who initiated the ending of the contract is the employer. This use of such terms is even encouraged further by recruitment agencies.

We do not encourage such loose use of language. Termination of contract is termination. It is the contract that is terminated, so it does not matter whoever initiates the termination. For example, one can say: “My contract was terminated by my employer” or, “I terminated the contract”.

The problem with using the term “break contract” to refer to a migrant worker terminating the contract is that it connotes that the termination was done without following the set rules for terminating the contract. Thus, making the termination illegal.  Migrant workers should understand that terminating or ending the contract is one of the provisions or clauses in the employment contract. Thus, if either the domestic worker or employer ends the contract, as long as the rules are complied with, the termination is legal and no contract is “broken”.

As a foreign domestic worker, one can say “I terminated the contract by giving my employer a month’s notice of termination.” If the employer did the same, the statement can be similar: “My employer terminated the contract by giving me a month’s notice of termination.” In both cases, no one broke the contract because in both cases, the rule of giving a month’s notice to terminate the contract was followed. If you were driven out of the employer’s house in the middle of the night without notice, without a valid reason, nor payment in lieu of notice, your employer broke the contract. When you left your job without giving a month’s notice, without a valid reason nor payment to your employer the equivalent of a month’s salary, then you broke the contract.

There are certain complicated situations such as in assault cases. When an employer assaults a domestic worker, the latter may decide to run away for fear of her life. The contract is therefore terminated in a constructive way or what is legally called constructive termination. The domestic worker has a valid reason to leave without a month’s notice.

Even if it is the migrant worker who did ran away, the contract was in effect terminated by the employer because it was the employer’s act of assaulting the worker that broke the contract. Breaking the contract also means ending the contract prematurely but in an unjust or unlawful manner. We hope that the use of the term is better clarified in this example.

Now, there is also the term “early release”.

It is important to understand that having the two-week rule (or New Conditions of Stay, 1987) is like a sword of Damocles always hanging over the head of foreign domestic workers. Thus, it is not unusual to aspire to have more days to find a new employer when a contract is terminated. If the duration of the remaining visa before termination is more than two weeks and you have a valid reason to stay longer such as when you have a case going on, once extended, your status becomes a visitor. The matter of determining the termination date is so important to determine the last day of your stay in Hong Kong under the “two-week rule”.

There are instances when a contract is terminated with still a month or a few more weeks to go to finish it but the employer wants the domestic worker to leave her employ immediately.  Sometimes, it is the domestic worker who would request for the same. It is in instances like these that the matter of “early release” comes in.

There is no such thing as “early release”. It is either the Immigration Officer at the counter considers your case as finished contract or not, therefore, it is simply a termination of contract (not early release).  When you are in such situation, immediately consult your diary, find the notes of statutory holidays and rest days that you have not taken during your employment period. Add the number of days you are entitled for annual leave. Put all these together, then you get the number of days that you can take and declare as lawfully your holidays (days off, statutory holidays and annual leave) and if there are still remaining extra days to cover the period until the end of your contract period for the employer to pay, just present it that way. It will also help to have a termination letter written by the employer to explain the situation and these are all presented to the Immigration Department for their decision.  Because who determines what a “finished contract” is, in tricky situation like this, is only the Immigration Department. There is no such thing as “early release” that is being determined because what you are after should be whether or not yours is a case of finished contract.

There is a saying that “sticks and stones may break my bones, but words will not hurt me.” Not always true. Sometimes, it is very important to use the precise words or terms or know the meaning of a certain word or term in order for them to not affect us adversely.

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