Court of Appeal confirms that standby time cannot be counted as statutory rest days or contractual day off
Introduction
Employees are entitled to at least one rest day in every period of seven days
under the Employment Ordinance (Cap.57). Additionally, employment contract may
provide for other leave entitlement with various labels such as “day off”. If
an employee is required to be on standby duty that requires him to be
contactable by phone and, if required, report to work, can such standby time be
counted as a rest day under the Ordinance or a day off under the employment
contract?
In the recent case of Breton Jean
v香港麗翔公務航空有限公司 (HK Bellawings Jet Limited) [2022]
HKCA 1736, the Court of Appeal (“CA”)
affirmed the District Court’s judgment that standby time should not be regarded
as either a “rest day” under the Employment Ordinance or a “day off” that was
promised under the employment contract in question. We have previously reported
the District Court’s judgment in the February 2021 edition of our employment
newsletter (read more here).
Background
By a letter dated 13 July 2015 (“Employment Contract”), Hong Kong
Bellawings Jet Limited (“Employer”),
a business jet management company, employed Mr Jean Breton (“Employee”) as a pilot.
By additional rules and regulations
incorporated into the Employment Contract, it is provided that the Employee
shall not work more than 7 consecutive days before being given a day off. He
shall have at least 3 days off in any consecutive 14 days and at least 8 days
off in any consecutive 28 days. This day off entitlement was in addition to the
annual leave entitlement granted under the Employment Contract.
The Employment Contract did not provide for
any regular working hours, and the Employee was required to perform “standby
duty” under the Employer’s instructions. During this standby duty, the Employee
was required to be accessible by pager or phone, and should respond to calls
from the Employer within 1 hour. The Employer may require the Employee to
report for duty during standby time and, if the Employer requires, the Employee
must report for duty within 4 hours.
The Employee was granted annual leave from
14 to 30 December 2016, however, he was absent from work from 8 to 13 December
2016 without any valid reasons. As a result, the Employer summarily dismissed
him on 31 December 2016.
Decisions
of the District Court
The Employee brought claims against the
Employer before the District Court for (1) his statutory rest day pay and (2)
wrongful termination. The Employee argued that during his employment, he was
either on “flight duty”, “standby duty” or on annual leave and, therefore, he was
not granted any rest days in accordance with the Employment Ordinance or days
off pursuant to the Employment Contract. The Employee also contended that the
termination was wrongful as he was entitled to be absent from work due to him
taking his “rest days”.
The District Court found that the time
when the Employee was on “standby duty” should not be regarded as “rest days”
under the Employment Ordinance or “days off” under the Employment Contract. The
termination of his employment was valid as the Employee’s absence was
unauthorised and without any valid reasons.
The Employer appealed against the District
Court’s Decision regarding the Employee’s rest day pay claim.
The
grounds of appeal
The Employer’s grounds
of appeal were:
1. The
judge below erred in adopting the notions and related principles of “rest day”
under the Employment Ordinance when the Employee’s pleaded claim against the
Employer is for its failure to provide him with “days off” and placed no
reliance upon any breach of the Ordinance (“Ground 1”).
2. Further or
alternatively, the judge failed to properly construe the meanings of “days off”
and “standby” within the context of the Employment Contract, and thus erred in
concluding that the Employee was not provided with “days off” as per the Employment
Contract (“Ground 2”).
3. By reason of the
aforesaid, the judge erred in finding that the Employer liable for the Employee’s
“day off” pay claim (“Ground 3”).
Ground
2 – true construction of the Employment Contract
The CA first dealt with Ground 2. It held
that on those days that he was required to be on standby to report for duty on
short notice given by the Employer, the Employee should not be regarded as
having a “day off” for, among others, the following reasons:
1. When
the Employee was designated to standby duty, he was required to be on call and
answer paging or phone calls within 1 hour and perform necessary flying duties
within 4 hours.
2. On those days that the Employee
was required to be on standby, he was designated to “standby duty” within the
meaning of the Employment Contract.
3. By virtue of the
additional rules and regulations (which has been incorporated into the Employment
Contract), “Duty and Duty Period” was defined to include any period of time
that the Employee was designated to standby duty, and the Employee would be
regarded as being on “Duty” during such period.
4. As a matter of ordinary
language, a person should not be regarded as being on a “day off” if he is on
“duty”, and vice versa.
5. The additional rules and
regulations also made it clear that a crew member in the employ of the Employer
was required to be on standby/standby duty unless he was on “domestic day off”/“resting”
or on “scheduled annual leave”.
6. The above construction of the expression “day off” in the Employment
Contract to exclude those days that the Employee was placed on standby duty is
consistent with, and reinforced by, the concept of “rest day” in the Employment
Ordinance, which is defined to mean “a continuous period of not less than 24 hours during which an
employee is entitled … to abstain from working for his employee”.
Ground
1 – Relevance of the concept of “rest day”
The Employer argued that the judge below was
wrong to allow the Employee to rely on the notion of “rest day” in the
Employment Ordinance to construe the expression “day off” when this did not
form part of the Employee’s pleaded case. The Employer further argued that the judge
erred by adopting the notion of “rest day” under the Ordinance as the meaning
of “day off” in the Employment Contract.
The CA rejected both arguments. The construction
of the expression “day off” is a question of law, which is a matter for
argument but not a matter of pleadings. The CA saw no reason why the Employee
could not rely on the notion of “rest day” in the Ordinance in aid of his
argument concerning the proper construction of “day off” in the Employment
Contract.
In respect of the substantive point
concerning the relevance of the concept of “rest day” in construing the notion
of “day off”, the CA noted that the Employment Contract provides that the
provision of “days off” is to give crew members an opportunity for adequate
rest so that they would be able to properly discharge their flight duties. The
concepts of “day off” and “rest day” are obviously related. While the two
concepts do not necessarily have the same meaning, the meaning of “rest day” in
the Ordinance is clearly relevant to the proper meaning that should be given to
“day off” in the Employment Contract.
In the absence of any clear indication to
the contrary, the CA was inclined to the view that the contracting parties
intended the two concepts to bear the same meaning to ensure consistency and
coherence of their rights and obligations under the Employment Contract and the
Ordinance.
Further, the CA observed that the judge
below did not merely rely on the statutory definition of “rest day” in the
Ordinance. He also took into account other provisions in the Employment Contract
as well as the factual matrix in the construction exercise. The CA concluded
that the judge was correct to rely on the statutory definition of “rest day” as
an aid to the proper construction of the expression “day off” in the Employment
Contract.
Having rejected Grounds 1 and 2, the CA
considered it not necessary to deal with Ground 3
Takeaways
The Bellawings case
shows that where an employee is required to be on standby duty, such standby
time is unlikely to be regarded as either statutory “rest day” under the
Employment Ordinance or “day off” in an employment contract if there is no
clear indication to the contrary.
Failure to grant at least one statutory rest day in every period of
seven days is an offence under the Employment Ordinance, whereas failure to
grant any “day off” contractually stipulated is a breach of contract. If you
are in doubt of whether your workplace arrangement may constitute a failure to
grant any statutory rest day / contractual day off, you are advised to consult
an employment lawyer regarding your rights and obligations.
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Important: The law and procedure on
this subject are very specialised and
complicated. This article is just a very general outline for reference and
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Published by ONC Lawyers © 2023 |