There has recently been a lot in the media around the provision of care for the elderly in Hong Kong, with the Government seriously considering providing subsidies to those living alone in public rental flats to hire a domestic worker.
As reported in the South China Morning Post, statistics show that 9.7 per cent of elderly singles living alone in Hong Kong hired a domestic worker last year, a jump from 5.2 per cent in 2005.
However, problems can arise when domestic workers are employed to care for the elderly, as we discovered with one client, whose complex case is described below.
We first met our client at the beginning of the year when she came to seek advice about not being paid her wages. She provides 24-hour care, seven days a week, with limited rest days, to an elderly lady who now lives alone, following the death of the lady’s husband. Our client has worked for her for four years and they have formed a very close bond. Even though the elderly lady has children, they seldom come and visit, leaving our client as the main care giver.
When the employer’s husband was alive our client would receive her salary on time with no issue. Since his death and due to the lady’s ill health, her children manage her finances, including the responsibility of paying our client’s salary.
Following an unsuccessful conciliation meeting, our client was forced to file a claim with the Labour Department for payment of arrears of wages, compensation for rest day pay, and statutory holidays that she had not been able to take because of her employer’s health. To further complicate matters, our client’s case was suspended whilst there was an ongoing court case between the elderly lady’s children regarding the power of attorney, later settled in the High Court.
Throughout the process both HELP and the Labour Department explained to our client that she could consider herself dismissed because she had not been paid her wages. However, she felt compelled to stay by her own duty of care and compassion to her employer who needs round the clock care, despite desperately needing money to send home, as her daughter was in hospital in Indonesia with medical bills piling up!
HELP provided support every step of the way, leading amicable negotiations between the client and employer. We are pleased to report that, following her initial claim and after several months, the children paid the outstanding money due to her. Everything was in order and she believed her wages would be paid on time going forwards. If HELP hadn’t intervened this could have resulted in a very different outcome.
Fast forward a couple of months, our client commenced her third contract with the elderly lady, providing her with care that otherwise would not be available. However, she has recently stopped being paid her salary once again, due to another disagreement between the elderly lady’s children over whether she should be moved into a care home, leaving our client in limbo with no money. As explained previously she is within her rights to leave her employment, but she really does have a heart of gold, her main priority is the elderly lady. She would feel a sense of responsibility for the lady should something happen.
In light of the continued non-payment of her salary, our client was obliged to file yet another claim with the Labour Department and go through the laborious process in order to receive what is rightfully owed to her. Our client also regretfully decided that she can no longer work for the elderly lady without being paid. She considers herself constructively dismissed by her employer under section 10a of the Employment Ordinance (Cap 17) and is also claiming for remedies in this regard.