Is it possible for an employer to dismiss an employee who takes part in a strike within working hours? Is taking part in a strike for political reasons not protected under the existing employment legislation?
Under Section 21B(1)(b) of the Employment Ordinance (Cap. 57), every employee shall as between himself and his employer, and where he is a member of any trade union, the right, at any appropriate time, to take part in the activities of the trade union.
appropriate time (適當時間) means, in relation to an employee taking part in any activities of a trade union, time which either—
(a)is outside his working hours; or
(b)is a time within his working hours at which, in accordance with arrangements agreed with or consent given by or on behalf of his employer, it is permissible for him to take part in those activities.
That means an employee shall not take part in any activities of a trade union (including a strike) at a time which is not an “appropriate time” without the consent of the employer. Otherwise, the employee’s action may amount to misconduct, which is subject to disciplinary actions or even termination of employment.
In addition, the existing employment legislation offers protection to an employee taking part in a strike for matters relating to employment terms and conditions. Taking part in a strike for the purpose of demanding closure of the border with mainland China by the HKSAR Government may not even fall within the legal definition of “strike” under the existing legislation. If that is the case, the employees who take part in the strike may not be able to rely on the protection offered under the employment legislation.
Under the Trade Unions Ordinance (Cap. 332):
“strike” (罷工) means the cessation of work by a body of persons employed acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of persons employed, to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or the employer of any other person or body of persons, or any person or body of persons employed, to accept or not to accept terms or conditions of or affecting employment.