2. Disputes resolution
a) How is the forum (the court where the case is heard) determined?
In the unfortunate event of an employment-related dispute, how it will be resolved will depend on the contractual arrangement:
- Under a secondment arrangement, any dispute under the secondment contract shall be dealt with by the overseas home employer as opposed to the Hong Kong employer.
- Under a dual contract arrangement, as there are 2 separate contracts, employees can go to the relevant employer for remedies in case of any contractual disputes. The employee will also be in a position to choose to take action in the jurisdiction that is most favourable to his case.
- Under a direct hire arrangement, there is essentially only one employer that the employee can go to and hence the dispute shall be dealt with at the relevant jurisdiction.
b) How is the governing law determined?
Section 4 of the Employment Ordinance (Cap 57) states that “this Ordinance applies to every employee engaged under a contract of employment, to an employer of such employee and to a contract of employment between such employer and employee.” In determining whether the section and Hong Kong law will apply, the following issues shall be considered:
- The parties' express intention on the governing law;
- When there is no express provision on the governing law, the parties' intention that can be inferred from the terms and nature of the employment contract and the circumstances of the case; and
- If the parties' intention is neither express nor can be inferred, the contract will then be governed by the law that has the closest and most real connection, the considerations of which can involve the place of performing and making the contract and the parties' residence.