人才薈萃 - Hong Kong Institute of Human Resource Management

28 HumanResources
performance errors, and or create
a pipeline for future leadership,
the key to success is to have
conversations that lead to results…
or quite simply, to coach your new
hires.
There are as many different
definitions and approaches to
effective coaching as there are
people who profess to do it. As
an International Coach Federation
(ICF) certified coach, I define it is
a confidential, empowering, and
catalytic relationship between a
coach and coachee(s) to facilitate
learning and growth, improve
performance, and close gaps in
coachee(s)’ required skills and
behaviors
In order to help new hires to be
coachable, it’s important to create
a coaching culture within your
organization. When such a culture
exists, the focus shifts from “right”
and “wrong” to solutions for moving
forward. Everyone’s viewpoint,
16 HumanResources
Sources: South China Morning Post
6 HumanResources
irrespective of title, is considered. If
you are used to a more traditional
hierarchal relationship with your
employees—particularly those that
are new and young—this may feel
uncomfortable at first. But stick
with it. Once you get comfortable
dancing between the role of coach
and coachee, you will begin to
notice that your own enjoyment
increases. A coaching culture allows
you to let go of the need to have all
of the right answers, and to instead
trust that in dialogue you and your
team will devise strategies and
techniques for future action.
When using coaching as a tool for
effective onboarding, incorporate
these proven tactics.
As a generation, young professionals
have not been encouraged to take
risks. The increasing emphasis on
standardized tests and grade point
averages has made many young
people play it safe and get to “the
right answer” as quickly as possible.
Give room for young
professionals to
stretch beyond
what they know
Sources: HR Morning.com
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Here’s a nice change: The NLRB’s
most recent memo on social media
policies carries some clear-cut guidance
companies can actually use.
Acting General Counsel Lafe Solomon
released his third memo on how the
NLRB regards employee use of social
networking sites. And much of this
missive is a rehash of earlier stances.
The difference in the most recent memo,
however, is that it zeroes in on specific
company policies – and actually identifies
one (unnamed) organization’s policy as Solomon’s memo looks at seven cases involving company social
completely acceptable.
media policies. The NLRB found violations in six of those policies.
There is an increasing global worker mobility and relocation
trend to newly emerged markets such as BRIC countries –
Brazil, Russia, India and China, a trend tracked in a survey
by an international relocation service provider covering
organisations with a total global headcount of over 5.6 million.
International assignments to Asia Pacific continued to increase.
China, Brazil, India and Singapore are the top four emerging
new-assignment markets among the respondents. Apart from
the relocation trend, there is an increasing trend towards
hiring non-locals directly in the local market, especially in
China. The advantage is that the person already has a track
record working in the market, with some local contacts and
knowledge of the local business culture.
www.hkihrm.org
ReUteRS/RaLPH ORLOWSki
www.hkihrm.org August 2012 29
how to do so that
they can go from
being mediocre to
marvelous. When
giving feedback to your
youngest employees
to support them in
moving to the next
level of success, give
them opportunities to
take responsibility for
their own behavior and
spot their strengths as well
as their areas for growth.
If they cannot identify
their own mistakes, be
transparent and let them
know where they have
missed the mark.
Together, identify
an immigration ordinance restricting
residency rights for domestic
workers was constitutional, a
decision that strikes down a local
court ruling from September.
Mark Daly, a lawyer for Evangeline
Banao Vallejos, the Philippine-born
domestic worker at the center of the
case, said an appeal of Wednesday’s
ruling to the Court of Final Appeal,
Hong Kong’s highest court is
probable, but a decision had not yet
been made.
Many foreign-born residents are
eligible to apply for permanent
residency after living in Hong
Kong for seven consecutive years,
a status that grants greater rights,
like being allowed to live in the
territory without a visa, and access
to benefits including public housing
and social security.
Ms. Vallejos, a domestic worker
who has lived in Hong Kong for
more than 25 years, challenged the
immigration department ordinance
and won a ruling last Sept. 30, when
a judge called the department’s
ruling a violation of the Basic Law,
Hong Kong’s effective constitution
since its return to Chinese rule in
1997.
By alexia Vernon
what can be learned from the
mistake and how to move forward.
If your new hire communicates
that the mistake stems from a lack
of knowledge, fill in the gaps.
Make sure that you end such
conversations by having your new
hires share back what they have
learned, how they will apply this
learning moving forward, and what
www.hkihrm.org August 2012 17
8
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Domestic workers who look after
children and perform household
chores form the majority of non-
Chinese residents in this territory of
seven million. They are generally
given room and board, work six
days a week and earn a minimum
wage of 3,740 Hong Kong dollars,
or $480, a month, below that set for
other workers.
Rights advocates said that Hong
Kong’s guaranteed one day off
a week and minimum wage are
standards for domestic workers
that exceed those of other Asian
economies. But they called
Wednesday’s ruling a missed
opportunity for the territory to
promote the rights of workers across
the region.
“This is an example of where Hong
Kong could have sent an example,”
said Nisha Varia, a senior researcher
in New York for Human Rights
Watch. “When workers are on
temporary contracts, usually they are
at higher risk for discrimination or
abuse.”
In its ruling on Wednesday, the
three-judge panel said the Basic Law
does allow the exclusion of foreign
domestic workers from consideration
for permanent residency.
“It is a category of exclusion not
different in kind, but only in degree,
they need from you to support their
success.
Just as it’s important to address
your expectations and how you
will measure success, it’s equally
important to hold employees
accountable when they do not
perform. If you fail to follow
through with your word, future
hires and members of your team
will see you as all talk and no
action. As a result, they will begin
to push boundaries. For many
employees, a hiccup or mistake
on the path to success
is inevitable. But, if someone
violates a rule or consistently fails
to meet expectations, your authority
and future success depends on
upholding the consequences.
A. Fixed term contracts
Sometimes, the parties
only agree toenter into an
employment agreement fora
fixed-term period, ranging from a
fewmonths to a few years. If an
employerwishes to terminate the
employmentrelationship before the
expiration of thefixed-term period
(without there beingany material
breach of the employmentcontract
from the other party), thereis
a risk that the employee could
filea complaint. Employees might
claimwrongful termination and
claim damagesagainst the employer
for the unexpiredportion of
the fixed term, as in Horkulakv
Cantor Fitzgerald International
[2004]ICR 697. An employer may
need toconsider whether they
wish to include aprovision in the
employment agreementgiving
a right to both parties (or only
theemployer) to terminate the
employmentrelationship during the
fixed-term period.Without such a
clause, there is a risk oflegal action.
18 www.hkihrm.org
www.hkihrm.org
By sebastian bitticks
B. Is this the entire agreement
It is not uncommon for the parties
tonegotiate the contents of the
employmentagreement or for
there to be differentversions of
the employment agreementbefore
it is finally executed. In order
toensure that the employment
agreementcontains all the agreed
terms, and to avoidpossible
arguments over discarded terms,it
is advisable to expressly state in
theemployment agreement that it
containsthe entire understanding
between theparties in relation to
the employmentrelationship, and it
supersedes any priorunderstanding
or agreement (whetherwritten or
oral) over that relationship.
C. Bonus payments
Some employers grant annual
bonuses totheir employees on
the condition that theyshall
remain in employment at the
time ofpayment. However, such a
condition maynot be enforceable
if the annual bonus is acontractual
obligation (non-discretionary)
ReUteRS/RaLPH ORLOWSki
12 HumanResources
and falls within the definition of
an “Endof Year Payment”. Under
the EmploymentOrdinance (EO),
generally speaking, ifthe employee’s
employment is terminatedby
the employer (other than
throughsummary dismissal) during
the paymentyear, the employee
is entitled to a proratedamount
of the annual bonus, evenif there
are contractual provisions to
thecontrary.In the case of Wong
Huey Lanvs Colgate-Palmolive
(HK) Limited(HCLA77/2001),
the claimant’semployment was
terminated by thedefendant on the
grounds of redundancy.The claimant
was subject to an annualincentive
plan, under which in orderfor
an employee to receive the
bonus,they had to meet certain predeterminedtargets
and performance
ratings. It wasalso set out in the
incentive plan that theemployer had
an option to cancel theincentive
if its business performancewas
poor. The claimant asked for a
proratedamount of the annual bonus
employee’s priorities. This is despite,
as a recent Harvard Business Review
article points out, the average tenure
of a junior employee in China being
2.5 years, well below the threeyear
mark where most can expect
their second career advancement.
Why, if career advancement is so
important, are so many Chinese staff
jumping ship before they can reap
the rewards
“If you read all the management
reports, it’s all about career
development and career
advancement. But if you go to focus
groups, or one-to-one interviews,
it’s much more about financial
advancement and reimbursement,”
says Martin Cerullo of Alexander
Mann Solutions. From his vantage
helping Chinese companies bridge
the gap with employees, he has
found that the paper surveys are
only telling part of the story. In
China, cash is still king. At the
same time, another major trend
has emerged, with Chinese stateowned
enterprises (SOEs) jumping
far ahead of multi-nationals in
August 2012
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employee preference surveys. A
mid-2010 survey from Manpower
found Chinese companies 5% more
popular, with foreign firms dropping
twice as much in popularity.
These are tough days for outsiders
retaining talent, and this includes
Hong Kong employers.
but theemployer declined, arguing
that the bonuswas discretionary. The
court consideredthat although the
assessment criteriainvolved certain
discretionary elements(specifically
that the employer has theright to
set the operating target, assessthe
performance of the employee and
tocancel the plan), the discretion
can onlybe properly exercised with
regard toclearly identifiable objective
criteria. If it is the employer’s
intention togrant a discretionary
bonus, it shouldexpressly stipulate in
the employmentagreement that the
bonus is paid at thesole discretion
of the employer. It isnot advisable to
set out any detailedguidelines as to
the entitlement orcalculation of the
same.
D. Notice period
Under Hong Kong law, an
employerand an employee may
agree upon thenotice period
required in terminatingthe
employment relationship. Under
theEO, the agreed period shall not
be less than seven days (save and
except duringthe first month of
the probation periodin which no
notice or payment in lieu ofnotice
is required). However, accordingto
the EO, if the termination notice
periodis not agreed, the notice
period duringthe probationary
period is deemed to beseven days
(save and except during thefirst
month of the probation), and after
theprobation period, one month.
There is no provision in the
EOrequiring that the notice periods
requiredon the part of an employer
Peeling back the surface, the picture
becomes more sophisticated.
Winston Chow, the head of
Alexander Mann’s China operations,
points out that a specific type
of skills shortage has fuelled the
bidding wars. “It’s the combination
of hard and soft; hard technical skills
with the experience and leadership
ability, which is rare in China. Every
employee with both realises their
value, and the market is paying.” In
some cases, an indemand employee
can get as much as a 40% bump in
pay just from shifting to the same
position at a different company. The
other factor is something Chow calls
the “empty-monthly” generation
By sebastian bitticks
(). Young professionals in
China have developed expensive
tastes, and overall an expectation for
more comfortable lifestyles.
Young
9
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on the basis that it is the more
appropriate forum for a dispute was
first laid down in The Adhiguna
Meranti [1987] 2 HKC 126 (where
the Court of Appeal had to decide
whether Hong Kong or Indonesia
was the more appropriate forum).
The test has three stages: (i) the
defendant must prove that the
mainland, rather than Hong Kong,
is the natural and appropriate forum
(this burden of proof is reversed
where the plaintiff does not have
and on thepart of the employee
have to be the same. The employer
terminated the employment ofthe
employee during the fifth month
of theprobation period by making
payment inlieu of seven days’
notice. The employeedisagreed and
claimed that the employershould
make payment in lieu of onemonth
notice instead.The case was first
heard in the SmallClaims Tribunal,
in which the adjudicatorruled
that the notice period required
onthe part of employer should
also be thesame as that of the
employee, despitethe employment
agreement including nomention
of the employer’s notice period.
The case was appealed to the High
Court,and the Judge considered that
as therewas no agreed termination
notice periodon the part of the
employer, and underthe EO, the
employer was only requiredto
give a termination notice period of
notless than seven days. The Judge
furtherconfirmed that although the
terminationnotice periods required
on the part ofthe employer and the
employee weredifferent, it was not
in contravention ofthe EO.
E. Hours worked
The Minimum Wage Ordinance
(MWO)has been in place since
1 May 2011.Under the MWO,
employers will berequired to pay
to each employee anamount of
wages in every wage period(taken
to be one month unless thecontrary
is proved) at least equal to
theminimum hourly wage rate
(currentlyfixed at HK$28) multiplied
August 2012
By keVin drew
jurisdiction as of right but only by
virtue of long-arm jurisdiction);
(ii) if the defendant succeeds in
proving (i), the plaintiff must then
establish that if the claim went to
the mainland, this would deprive
him/her of legitimate personal or
juridical advantages; and (iii) if the
plaintiff can prove (ii), then the
court must balance the advantages
of the trial in the mainland against
the disadvantages to be suffered
by the plaintiff and decide whether
‘substantial justice’ will be done if
the case is allowed to proceed in the
mainland.
August 2012 35
by the numberof hours worked.It is
therefore important to ascertainthe
number of hours worked by
eachemployee, and it is advisable
to clearlyset out in the employment
contract thenormal business hours
of the employer.In computing
the number of hoursworked,
an employee is considered tobe
“at work” if they attend a place
ofemployment in accordance
with thecontract of employment
or with theagreement or at the
direction of theemployer. In this
regard, it is advisable to set out in
theemployment agreement as to
whether restdays are paid or unpaid
to avoid futuredisputes.
Conclusion
In view of the examples set
out above, onecan see that if
an employment contractis not
carefully drafted, it will easilylead to
unnecessary misunderstandingand
disputes. It is therefore beneficial
toboth employers and employees
if theypay special attention in
preparing theircontracts or seek
legal assistance inrelation thereto.
Cynthia Chung
Partner, Head of Human Resources
and Pensions Group
Deacons
Elsie Chan
Associate, Human Resources and
Pensions Group
Deacons
August 2012
www.hkihrm.org August 2012 13
19
This recent Court of Appeal
decisionhighlights the importance of
anemployer’s duty to maintain a safe
placeof work and its responsibility
to providesufficient warning as
well as training insituations where
there may be dangersor hazards in
the workplace. This evenincludes
dangers which seem obvious.
22 HumanResources
On the one hand you have a
manager’s natural desire to do
“whatever needs to be done” to
make themselves and their staff
(often in that order) a success. These
managers resist rules, guidelines or
policies as an irritating limitation
of their authority as the boss. The
“yield” sign waved by Human
Resources or other observers is
viewed as a barrier to getting things
done – a brake on immediacy of
action and of decision-making.
These folks secretly wish that they
could do whatever they wanted to,
whenever they wanted.
Left to their own devices, when
one with such a mindset considers
an exception to policy or practice
they tend to focus on the immediate
problem (and person) in front of
them. Everything else is secondary.
When facing down a challenge,
they may don a set of blinders that
blocks their view of the unintended
consequences of their actions. They
make not even care.
They plunge straight ahead to fix
the problem … because they’re The
Manager!
Ho Foon Cheung v Shun Yip Engineering Company Limited
The plaintiff employee was a
painteremployed by the defendant
Shun YipEngineering Company
Limited (ShunYip). Shun Yip was
engaged to carry outa painting
job on the roof of a building
inKowloon. The employee was sent
to carryout the task which required
the employeeto pass from one side
August 2012
So when should these folks have to
toe the line with company policy
and procedures and say NO to an
employee When does the manager
have to play the bad guy
On the other side of the spectrum
are those who follow the rules
(policies, procedures, etc.) to
the exclusion of common sense,
reasonable judgment or emotional
considerations. Similar to the Left
Hand managers, they too have an
immediate problem to solve and
may don their own set of blinders,
likewise blocking their view of the
unintended consequences of their
actions.
They support the organization’s
need (monitored and administered
by HR) for standardization, internal
equity and fair treatment of all
employees. There are rules out
there, and independent discretion
(latitude to act as one sees fit) is
often seen as a risky business. it’s
easier to follow orders and sanction
the rule-breakers than it is to deal
with those who toe the line after
making an exception.
of the roof tothe other, thereby
crossing a set of airconditioning
pipes lying across the roof.The
pipes were 750 cm high and over
onemetre wide. After completing his
work,the plaintiff crossed over the
convexsurface of the pipes and fell
and injuredhimself.
At the High Court, the Court
decidedthat the pipes were not
www.hkihrm.org
25
ENGAGING
NEW LOOk & LaYOUt
Get the maximum impact for your ad from a design that pulls the reader in and holds their attention within these popular, regular
sections as well as special features. the fresh look of Human Resources will combine those sections readers value so much with new
features and content.
COVeR StORY engaging, thought-provoking stories
on leading topics and issues of the day
Cover Story
Wrongful Termination Under
Employment Ordinance
By keVin drew
HR tOOLBOX includes a mix of HR fundamentals
and ready-to-use resources
HR Toolbox
“Put Me In Coach”: 5 Ways To Effectively
Get Your Gen Y Employees to Perform
Onboarding new young professionals to peak performance requires
everyone involved with their success – from hiring manager to trainer
to direct supervisor – to meet young new hires where they are and cocreate
solutions in order to take them where they need to be.
hether your onboarding
Wgoals are to retain more of
the “right” employees, minimize
Make Mistakes Teachable
Moments
A Hong Kong court on Wednesday overturned
a ruling from last year that would have allowed
foreign-born domestic workers to apply for
permanent residency, the latest decision in a
closely watched case.
hief Judge Andrew Cheung,
Cwriting for the three-member
panel of the High Court, said that
Cover Story
Uphold Consequences
iNteRVieW a platform to hear and learn from key
thought leaders in the industry
We will keep Human Resources fresh and
relevant by adding new content and features
LeGaL UPdate Places employment law in context
Employment Contract
Blind Spots
By cynthia chung and elsie chan
Many employment-related disputes can be avoided if the
employment agreementis carefully prepared and the terms and
conditions of employment are clearly set out. This article aims to
highlight certain areas which people tend to overlook in preparing an
employment agreement.
❝
... this
employee
is asking,
shouldn’t my
annual increase
percentage at least
match the cost of
living
❞
Interview with
Eric Lee
HR Consultant
Society of Human Resources Management (SHRM)
Toastmasters International, CTM
Interview
No one has ever said that management was
easy. When you’re responsible for a group of
employees, experienced managers will tell
you that they often find themselves walking a
tightrope, balancing the needs and demands of
the company against their own personal wants
and those of their employees.
he test for deciding whether
Tcourt proceedings should be
stayed in favour of mainland China
• Legal Updates
LeiSURe time a section
that keeps readers informed
of the latest lifestyle trends
affecting the workplace
No one has ever said that management was
easy. When you’re responsible for a group of
employees, no matter how many, experienced
managers will tell you that they often find
themselves walking a tightrope, balancing the
needs and demands of the company against
their own personal wants and those of their
employees. Think of a circus high-wire act,
absent the flashy costumes and painted faces.
The left hand
The right hand
• Features
HumanResources
CaSeS iN BRieF a
summary of relevant,
recent court cases with
take-away points for HR
professionals
Cases in Brief
Employers’ Duty of Care
for Obvious Dangers
Summary
NEW SECTION!
Facts
HumanResources
NeWS FeatURe the latest
news and developments
affecting HR and related
professionals
CHiNa FOCUS an in-depth look at developments in China
and their impact on business locally and regionally
China Focus
• China Focus
What are they thinking It is the question
dogging any HR professional with China
News
operations who sometimes find difficulties in
understanding their staff on the mainland. That
•
Chinese staff will leave for a small bump in
Feds put stamp of approval on
this social media policy
Labour Market –
Global
Special Reports –
Global
Rising Tide of Western
Employees Relocating to East
Holding on in China:
The Retention Challenge
pay has been extensively documented, but that
does not help explain what is motivating them.
ore baffling are survey results
Mthat put career advancement
and development at the top of
What are they thinking
HumanResources
ReUteRS/toby melville
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