Helper Resignation or Dismissal? 5 Major Disputes Over Long Service Payment, Notice Period and Air Tickets Explained

Helper Resignation or Dismissal? A Clear Look at Long Service Payment Rights, Notice Period and Air Ticket Costs in 5 Major Disputes

"My helper suddenly says she's quitting—is that her resigning or me dismissing her?" This is the biggest headache for many Hong Kong employers when handling a helper's departure. A single word can affect the liability to pay the long service payment, the method of calculating the notice period, and even who bears the cost of the return air ticket. As a consultant at a licensed employment agency, I have seen far too many employers end up at the Labour Department or even the Small Claims Tribunal because they confused the legal definitions of "resignation" and "dismissal." This article gets straight to the point, addressing three long-tail pain points—long service payment upon helper resignation, helper notice period calculation, and helper departure air ticket liability—by breaking down 5 real-world disputes one by one, with concrete calculation examples and statutory references to help you protect your rights amid the turmoil. If you want to grasp the overall framework first, you may revisit the parent topic Complete Guide to Helper Long Service Payment before returning to this article for details.

Dispute 1: Legal Definitions of Resignation and Dismissal—A World of Difference in Rights

Under the Employment Ordinance and the Standard Employment Contract (ID 407), "resignation" and "dismissal" are clearly distinguished in law, directly affecting the triggering conditions for the long service payment. The core threshold for the long service payment is continuous employment with the same household for 5 years and departure not due to serious misconduct. In other words, even if the helper resigns voluntarily, the employer may still have to pay the long service payment if specific statutory grounds are met.

• Helper resigns voluntarily: If the helper resigns on health grounds, due to old age, or because the employer seriously breached the employment contract (e.g., wage arrears, violent treatment), even with less than 5 years of service, it may be regarded as "constructive dismissal" and qualify for the long service payment.
• Employer dismisses: If the employer summarily dismisses the helper for serious misconduct (e.g., theft, negligent care of children), no long service payment is payable; but if it is a dismissal without cause or redundancy, even with less than 5 years of service, payment in lieu of notice and related compensation may still be payable.
• Practical tip: Never verbally tell the helper "don't work anymore." Always state the nature of the departure in writing (resignation letter or dismissal letter) and keep signed records from both parties to avoid conflicting accounts later.

Dispute 2: Helper Notice Period Calculation—One Month or Effective Immediately?

Helper notice period calculation is another major point of contention. The Standard Employment Contract stipulates that the notice period after the probation period is one month or one month's wages in lieu of notice (whichever is shorter). Three situations commonly arise in practice:

Practical tip: If the helper tries to get fired or is absent from work during the notice period, the employer should immediately record the days of absence and deduct wages proportionally, but must never confiscate the passport or force the helper to sign a voluntary resignation letter, as this may violate section 32 of the Employment Ordinance. If you are facing a situation of changing the helper's employer, the notice period calculation will be more complex; please refer to the contract termination procedures section in the Complete Guide to Changing Helper Employers.

Dispute 3: Long Service Payment Upon Helper Resignation—Who Pays and When?

The core of the long service payment upon helper resignation dispute lies in the interplay between the "reason for resignation" and "years of service." According to Labour Department guidelines, the statutory requirement for the long service payment is continuous employment with the same household for 5 years and departure not due to serious misconduct. The following three resignation scenarios require special attention:

• Scenario A: Helper resigns for personal reasons with less than 5 years of service. Does not qualify for the long service payment; the employer need not pay, but must pay wages up to the last working day and the return air ticket.
• Scenario B: Helper resigns on health grounds with 5 years of service. Even though it is a voluntary resignation, it still qualifies for the long service payment, and the employer must calculate and pay in accordance with the Employment Ordinance.
• Scenario C: Helper resigns alleging the employer breached the contract (constructive dismissal) with 5 years of service. The employer must pay the long service payment and may face a Labour Department investigation; immediate legal advice is recommended.

Calculation example: Helper's monthly salary is $5,000, employed for 6 years, resigns on health grounds. The long service payment formula is: monthly salary × 2/3 × years of service (capped at $390,000). That is $5,000 × 2/3 × 6 = $20,000. The employer must pay within 7 days after the helper's departure. If you want to understand the difference between severance payment and long service payment in depth, please refer to the feature article Difference Between Long Service Payment and Severance Payment.

Dispute 4: Helper Departure Air Ticket Liability—Does the Employer Pay Even for Resignation?

Helper departure air ticket liability is a blind spot for many employers. The Standard Employment Contract clearly stipulates that the employer is responsible for the helper's one-way air ticket back to the place of origin, regardless of whether the helper completes the contract, resigns, or is dismissed. The following disputes commonly arise in practice:

• Dispute 1: Helper demands "cash in lieu of air ticket" after resignation. The employer has the right to refuse and purchase the ticket directly; if the helper insists on cash, written confirmation must be obtained stating "voluntarily waiving the air ticket arrangement" to avoid future claims.
• Dispute 2: Helper leaves without authorization during the notice period—who pays for the air ticket? The employer must still pay for the air ticket to fulfill contractual obligations but may pursue civil claims for losses caused by the unauthorized departure (such as payment in lieu of notice).
• Dispute 3: Helper requests to go to a place other than the place of origin (e.g., a third country). The employer is only responsible for the air ticket back to the place of origin; any extra costs must be borne by the helper.

Practical tip: After purchasing the air ticket, always keep the e-ticket record and proof of receipt signed by the helper. If the helper refuses to board, the employer should immediately notify the Immigration Department and the employment agency to avoid bearing subsequent visa liability. If you are handling helper contract renewal, air ticket arrangements are usually simpler; please refer to the costs section in the Helper Contract Renewal guide.

Dispute 5: Long Service Payment Application Process and Document Disputes

When a helper resigns and qualifies for the long service payment, the employer must follow the helper long service payment application process, including completing designated forms and submitting employment records and proof of departure. Common disputes include:

• Dispute 1: Helper refuses to sign departure documents. The employer should send the documents by registered mail to the helper's registered address and keep the mailing record as evidence of having fulfilled the notification obligation.
• Dispute 2: Helper claims never to have received the long service payment. The employer must pay by bank transfer and keep the deposit record for at least 7 years; never pay in cash without a receipt.
• Dispute 3: Helper only makes a claim after departure. The time limit for claiming the long service payment is generally within 6 months after departure; the employer should retain all employment records for Labour Department inspection.

In summary, the key to handling helper resignation or dismissal lies in "written records" and "lawful calculation." Whether it is determining eligibility for the long service payment upon helper resignation, the accuracy of the helper notice period calculation, or the attribution of helper departure air ticket liability, employers should rely on the Standard Employment Contract and the Employment Ordinance, and consult a licensed employment agency or the Labour Department when necessary. If you want a comprehensive grasp of long service payment calculations and legal pitfalls, it is recommended to revisit the parent topic Complete Guide to Helper Long Service Payment to build a complete knowledge framework.

Frequently Asked Questions (FAQ)

Q: If the helper resigns voluntarily, does the employer still have to pay the long service payment?
A: It depends on the reason for resignation. If the helper resigns on health grounds, due to old age, or because the employer seriously breached the employment contract, it may qualify even with less than 5 years of service; if it is a resignation for ordinary personal reasons with less than 5 years of service, it does not meet the threshold of "continuous employment with the same household for 5 years and departure not due to serious misconduct," and the employer need not pay.

Q: How is the notice period calculated when a helper resigns? How is payment in lieu of notice calculated?
A: The Standard Employment Contract stipulates a notice period of one month or one month's wages in lieu of notice. If the helper leaves immediately, the employer may deduct an amount equal to the notice period wages from unpaid wages, but the deduction is capped at one month's wages and cannot include non-cash benefits such as air tickets and food.

Q: After a helper resigns, who is responsible for the return air ticket cost?
A: Generally, whether the helper resigns or completes the contract, the employer must bear the cost of the helper's one-way air ticket back to the place of origin; this is an obligation under the Standard Employment Contract. However, if the helper leaves without authorization during the notice period or is involved in serious misconduct, the employer should still pay for the air ticket to comply with the contract, and then pursue losses through civil channels.