Introduction

Under the Employment Ordinance (Cap. 57) (“EO”), employees are entitled to at least one rest day in every period of seven days. However, for employees who are required to be contactable and, if required, report to work on days that they are not expressly scheduled to perform any active duties, can such days be regarded as rest days under the EO? In the recent case of Breton Jean v 香港麗翔公務航空有限公司 (HK Bellawings Jet Limited) [2021] HKDC 46, the District Court found that even if the employee was not on active duty on certain days, those days do not necessarily meet the requirements of a statutory rest day.

Background

HK Bellawings Jet Limited (“Employer”), a business jet management company, employed Mr Jean Breton (“Employee”) as a pilot in July 2015. In addition to his flight duties, the scope of his employment included ground duties such as monitoring aircraft maintenance.

The employment contract expressly provided that the Employee had no regular working hours. The Employee was required to work on demand and to perform standby duty whenever necessary. When the Employee was designated to standby duty, he would be required to be accessible via his work phone and he had to answer calls within one hour and to perform the necessary flying duties thereafter. There was no roster system, and the Employer did not inform crew members of their rest periods.

The Employee was granted annual leave from 14 to 30 December 2016. On 8 December 2016, when the Employee was required to attend to aircraft maintenance, he did not show up and was unreachable by his work phone. The Employer also asked the Employee to attend a meeting on 13 December 2016; the Employee did not attend.

On 31 December 2016, the Employer summarily dismissed the Employee on the grounds that his absence from 8 to 13 December 2016 was unauthorized and was without any valid reasons.

The Employee brought claims against the Employer for (1) his statutory rest day pay and (2) wrongful termination.

Are non-flight days equivalent to statutory rest days?

It was the Employee’s contention that during the entire period of his employment, save for when he was on annual leave, he was on either “flight duty” or “standby duty” since he had to be contactable by his work phone whenever he was not flying. As such, he was never granted any rest days in accordance with section 17 of the EO or pursuant to the employment contract.

The Employer argued that the requirement for the Employee to be contactable did not equate to being designated on “standby duty”. There was an unwritten understanding that any non-flight days in which the Employee was resting at home or at another location would be counted as rest days (“Alleged Understanding”).

The main issue in dispute was whether the Employee was to be regarded as being placed on “standby duty” on the basis that he was required to be accessible on his work phone, and hence, whether such days should not be counted as “rest days” under the EO.

The Court’s findings

The Court found there was no evidence pointing towards the existence of the Alleged Understanding which suggests that employees had agreed to have their non-flight days be regarded as rest days.

Section 2 of the EO defines a statutory rest day as a continuous period of not less than 24 hours during which employees are entitled to abstain from working for the employer. According to the internal policies that formed part of the employment contract, the Employee (1) was prohibited from consuming alcohol within 12 hours prior to his reporting time, and (2) had to be contactable and report to work to perform the necessary duties within a certain period of time whenever he was not flying. This would effectively mean that he was on “standby duty” all the time, except for when he was on annual leave. Accordingly, the days when the Employee was on “standby duty” should not be regarded as rest days and the Court found in favour of the Employee in respect of his rest day pay claims.

Wrongful termination

The Employee claimed that he was entitled to be absent from work from 8 to 13 December 2016 because he was taking his rest days. He also contended that he was entitled to be absent from work on the basis that it was a customary practice to be off 2 days prior to annual leave, which started on 14 December 2016.

The Court’s findings

The Court found that throughout the period from 8 to 13 December 2016, the Employee had never asserted that he was absent from work due to his rest day entitlements. Further, in March 2016, the Employee was on flying duty during the days immediately before he took his annual leave. The Court did not accept the customary practice existed. As such, the Court found that the Employee’s absence was without a valid reason and unauthorized, and the summary dismissal was justified.

Takeaways

Interestingly, the Employer in this case started imposing a roster system and informing the crew members of their flight days, days on standby and rest days after the Employee’s departure, and the crew members are no longer required to be contactable by work phone on rest days. This dispute over the Employee’s rest day pay could have been avoided had there been a roster in place earlier on.

Employers putting their employees on standby duties without a clear schedule should consider adopting a roster system to clearly specify the days when employees are on standby duty and when they may take their rest days. Failure to grant at least one statutory rest day in every period of seven days is an offence under the EO.

Although the Employee concerned was not given any proper rest days, “self-help” was not the solution. An employee cannot be absent from work without a valid reason. When in doubt, employers and employees should seek legal advice regarding their rights and obligations.