Discretionary Bonus - 勞工法例線上諮詢

Hi,

I have a questions regarding the bonus payment.

I have been working full time last year. Usually, in previous years 2017 and 2018 the bonus is paid on Feb. However, due to the coronavirus situation, this year is schedule to pay on Apr instead.

If I am being lay off next week. Would I be able to entitle to get my 2019 bonus? Below are my contract term.

"Additionally, you are eligible for a variable discretionary bonus of up to 20% of your annual salary, based on Key Performance Areas and pro-rated according to your joining date. This bonus,if applicable, will be payable at the end of Halo's financial year(December 31)."

I have read the Chapter 8: End of Year Payment of A Concise Guide to the Employment Ordinance
"Presumption
For every employment contract made after 27 June 1997, it is presumed that an annual payment or annual bonus is not of a gratuitous nature and is not payable only at the discretion of the employer unless a written term or condition in the contract expresses intention to the contrary.

Eligibility for End of Year Payment
An employee is eligible for an end of year payment if he has been employed under a continuous contract for a whole payment period. The payment period shall be the period specified in the employment contract, or a lunar year if it is not specified."

But not sure in my case of the contract what will happen. Can the company just lay off me with the notice period without any bonus?

Many thanks in advance

Thank you for your query. You have quoted information about “Presumption” of end of year payment from Chapter 8: End of Year Payment of A Concise “Guide to the Employment Ordinance” and it clearly stated that “ ...unless a written term or condition in the contract expresses intention to the contrary.” It means the bonus is not a guarantee if any clause or an employment contract has define the nature of end of year bonus as “discretionary”. Although we would like to see the employer paying you end of year bonus or in proportion, there is not a guarantee in your case for the employer has already defined the nature of end of year bonus as “discretionary” in your employment contract. When due date of employment period comes and employer does not pay you the end of year bonus, s/he is executing “written term or condition in the contract expresses intention to the contrary.”

Shall you need further assistance, please contact our Labour Rights Hotlines by 2779 7922 (United China Bank Centre, Sham Shui Po), 27793766 (Sunward Centre, Sham Shui Po), 2781 0983 (Fu Tak Centre, Mong Kok) our 3615 0018 (Kwun Tong Centre).

Disclaimer : All the abovementioned viewpoints, suggestions and analysis are for general reference only, based on information you have provided. We shall not be responsible or liable for any loss or damage of any kind incurred as a result of the use of the abovementioned viewpoints, suggestions and analysis.

此主題 RSS Feed