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 cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2023