The Complaint
The Complainant was employed by a recruitment company (the “Company”) on an employment visa. Prior to her resignation, the Complainant applied for marriage leave and produced a copy of her marriage certificate (the “Certificate”) to the Company as proof of her marriage. Subsequently, the Company and the Complainant had a labour dispute.
During a hearing at the Labour Tribunal, the Complainant learned that the Company had disclosed the Certificate to the Immigration Department in connection with the cancellation of her employment visa and that the Company had disclosed the Certificate to the Labour Department to object to the grant of an employment agency license to a recruitment company run by the Complainant and her husband. Hence, the Complainant lodged a complaint with the PCPD against the Company for disclosing the Certificate to third parties without her prior consent.
Outcome
The Commissioner’s investigation revealed that for the purpose of withdrawing sponsorship for the working visa of an employee, a written notification by the employer to the Immigration Department would suffice. Therefore, it was unnecessary for the Company to furnish a copy of the Certificate to the Immigration Department for the purpose of withdrawing its sponsorship.
On the other hand, the Commissioner noted that in accordance with section 53(1) of the Employment Ordinance, the Labour Department may only refuse or revoke the employment agency license of the Complainant’s company if “within the preceding five years, (the Complainant) has been convicted of an offence against a child, young person or woman, or of an offence involving membership in a triad society, fraud, dishonesty or extortion”. The Commissioner held that the dispute between the Company and the Complainant concerned only the breach of employment contract terms, duty of confidentiality and restrictive covenants, which did not fall within any of the specified situations under section 53(1) of the Employment Ordinance.
Since the Certificate was collected by the Company in the course of and for the purpose of human resource management to assess the Complainant’s entitlement to marriage leave, the subsequent disclosure of the Certificate to the two government departments by the Company was inconsistent with or did not bear any direct relationship with the purpose for which the Certificate was first provided to the Company by the Complainant. The Commissioner therefore found the Company in contravention of DPP3 and issued an enforcement notice to the Company to remedy the breach.
uploaded on web in January 2014