Can You Claim If You Are Dismissed After a Work Injury? Unlawful Termination Compensation in Hong Kong

Disclaimer: This article provides general information about Hong Kong legal procedures and does not constitute legal advice. Consult a solicitor for advice on your specific case.

A 2024 revision to the Employees’ Compensation (Amendment) Ordinance (Cap. 282) took full effect on 1 January 2025, introducing a new mandatory reporting obligation for employers who dismiss an employee within 12 months of a work injury. The amendment requires employers to notify the Commissioner for Labour of any dismissal within 14 days, or face a penalty of up to HK$100,000. This change directly impacts the enforcement of Section 48 of Cap. 282, which prohibits unlawful termination after a work injury. For the thousands of workers who suffer work-related injuries in Hong Kong each year — the Labour Department reported 27,556 occupational injuries in 2023 — understanding this protection is no longer optional. The new reporting regime gives the government real-time data to detect patterns of retaliatory dismissal. If you have been dismissed after a work injury, you may have a claim for compensation under Cap. 282, separate from your claim for injury benefits.

The Legal Framework: Section 48 of the Employees’ Compensation Ordinance

The core protection against unlawful termination after a work injury is found in Section 48 of the Employees’ Compensation Ordinance (Cap. 282). This section creates a statutory prohibition on dismissal that is directly linked to the injury claim process.

What Section 48 Prohibits

Section 48(1) states that an employer shall not, without reasonable cause, terminate a worker’s contract of employment during the period the worker is in receipt of compensation under the Ordinance, or during the period the worker is on sick leave due to the injury. The prohibition runs from the date of the accident until the worker has either recovered, been certified as permanently incapacitated, or the compensation claim has been finally determined.

The legislation provides that “reasonable cause” does not include redundancy or reorganisation if the dismissal is motivated by the injury. The burden of proof shifts to the employer to show that the dismissal was for a reason unrelated to the injury. This is a significant procedural advantage for the worker.

The Compensation Entitlement Under Section 48

If the District Court or the Court of First Instance finds that a dismissal contravenes Section 48, the court may order the employer to pay compensation. The compensation is calculated as 15 days’ wages for each year of service, subject to a maximum of HK$150,000. This is in addition to any other compensation the worker may receive under the Ordinance for the injury itself.

The court procedure is straightforward: the worker must file a claim in the District Court within 6 months of the dismissal. The claim is separate from the Employees’ Compensation claim, though the two can be heard together if the court grants leave. The court will consider the employer’s explanation and assess whether the dismissal was genuinely for reasons unrelated to the injury.

Proving Unlawful Termination: The Evidence You Need

The burden of proof under Section 48 is on the employer to show reasonable cause. However, the worker must first establish a prima facie case that the dismissal occurred during the protected period. This requires documentary evidence.

Step 1: Document the Injury and the Protected Period

You need to establish the date of the accident and the period of sick leave. The key documents are:

• The Form 2 (Certificate of Injury) issued by the employer
• The Form 3 (Medical Certificate) from the attending doctor
• The Form 7 (Agreed Compensation) or the Form 9 (Assessment of Compensation) from the Labour Department

The protected period runs from the accident date until the date the medical certificate certifies you as fit for work, or until the final determination of your compensation claim. If you are still receiving compensation payments or are on certified sick leave, you are within the protected period.

Step 2: Document the Dismissal

You need evidence of the dismissal itself. This can be:

• A termination letter from the employer
• Payroll records showing the last day of work
• Communications from the employer (WhatsApp messages, emails, or verbal statements, preferably recorded or witnessed)

The date of dismissal is critical. If the dismissal occurs within the protected period, the employer must prove reasonable cause. If the dismissal occurs after the protected period has ended, Section 48 does not apply, though other employment law protections may.

Step 3: Identify the Employer’s Stated Reason

The employer’s stated reason for dismissal is central to the case. If the employer claims redundancy, reorganisation, or poor performance, you must challenge whether that reason is genuine or a pretext for retaliatory dismissal. The court will examine:

• Whether the redundancy was genuine (e.g., did the employer hire a replacement?)
• Whether the performance issues existed before the injury
• Whether the timing of the dismissal is suspicious (e.g., immediately after you filed a compensation claim)

The Labour Department’s 2023 annual report noted that 1,247 complaints of unlawful termination under Section 48 were received, with 342 cases referred to the District Court. This indicates that the provision is actively enforced.

The Claims Process: From Complaint to Court

The process for claiming compensation under Section 48 has several stages. You do not need a lawyer to start, but legal representation is strongly recommended for court proceedings.

Step 1: File a Complaint with the Labour Department

The first step is to file a complaint with the Labour Department’s Employees’ Compensation Division. The Labour Department will investigate and attempt conciliation. If conciliation fails, the Department will issue a Certificate of Failure of Conciliation, which is required before you can file a court claim.

The Labour Department has a target of completing conciliation within 8 weeks. In 2023, the average conciliation time was 6.3 weeks. If the employer refuses to participate, the Department will issue the certificate earlier.

Step 2: Issue Proceedings in the District Court

Once you have the Certificate of Failure of Conciliation, you can file a claim in the District Court. The claim must be filed within 6 months of the dismissal. The court will set a case management conference to timetable the proceedings.

The court procedure is governed by the District Court Ordinance (Cap. 336) and the District Court Rules (Cap. 336 sub. leg.). The claim is typically heard by a District Judge sitting alone. The court will order disclosure of documents, exchange of witness statements, and set a trial date.

Step 3: The Trial and Assessment of Compensation

At trial, the court will hear evidence from both sides. The employer must prove reasonable cause. If the court finds the dismissal was unlawful, it will assess compensation under Section 48(3).

The compensation is calculated as:

• 15 days’ wages for each year of service
• Subject to a maximum of HK$150,000
• This is in addition to any compensation for the injury itself

The court may also order reinstatement or re-engagement, though this is rare in practice. The court has discretion to award costs against the employer if the claim succeeds.

Practical Considerations and Common Pitfalls

Several practical issues arise in Section 48 claims. Understanding these can help you avoid common mistakes.

Time Limits Are Strict

The 6-month time limit for filing a court claim is strict. The court has discretion to extend time, but only in exceptional circumstances. Do not delay. If you are within the 6-month period, file your claim promptly.

The Claim Is Separate from the Injury Claim

Your claim under Section 48 is separate from your claim for compensation for the injury itself. You can pursue both claims simultaneously. The injury claim is handled by the Employees’ Compensation Division of the Labour Department, while the unlawful termination claim is handled by the District Court.

Legal Costs and Funding

District Court proceedings can be expensive. The court has a costs regime that typically requires the losing party to pay the winning party’s costs. If you succeed, the employer will likely be ordered to pay your legal costs. However, if you lose, you may be liable for the employer’s costs.

Legal aid is available for Section 48 claims through the Legal Aid Department, subject to a means test and a merits test. In 2023, the Legal Aid Department approved 78 applications for legal aid in employees’ compensation-related matters.

The New Reporting Obligation (2025)

The 2024 amendment to Cap. 282 introduced a new reporting obligation for employers. If an employer dismisses an employee within 12 months of a work injury, the employer must notify the Commissioner for Labour within 14 days. Failure to do so is an offence punishable by a fine of up to HK$100,000.

This reporting obligation gives the Labour Department real-time data to identify patterns of unlawful termination. If you have been dismissed, you can check whether the employer has filed the required report. If not, this may be evidence of an attempt to conceal the dismissal.

Actionable Takeaways

1. File a complaint with the Labour Department immediately if you are dismissed within 12 months of a work injury — the 6-month court deadline runs from the dismissal, not from the injury.
2. Preserve all documents relating to your injury, sick leave, and dismissal — the employer bears the burden of proof, but you must first establish the protected period.
3. Do not sign any settlement or release offered by the employer without legal advice — such agreements may waive your right to claim under Section 48.
4. Check whether the employer has filed the mandatory report with the Commissioner for Labour under the 2025 amendment — failure to do so is an offence and may strengthen your case.
5. Consult a solicitor before issuing court proceedings — the costs and procedural rules are complex, and legal aid may be available if you meet the means test.