febrero 01 2021

Are Your Employees in Hong Kong Required to Be Contactable outside Office Hours?

Authors:

In Breton Jean v 香港丽翔公务航空有限公司 (HK Bellawings Jet Limited) [2021] HKDC 46, the District Court (DC) in Hong Kong allowed the statutory rest day pay claim by the employee, who was required to be accessible on his work phone, but dismissed his claim for wrongful dismissal against his employer.

Background

The employee was a pilot. He joined the employer, a business jet management company, in July 2015 and was subsequently promoted to the position of Lead Captain. He had both flight duties and ground duties, such as monitoring aircraft maintenance.

The employee had no regular working hours and was required to work on demand. The employment contract provided, among other things, that if he was designated on standby, he must answer the employer's calls within one hour and perform the necessary flying duties.

The employer's operations manual, which formed part of the contract of employment, provided, among other things, that the employee was entitled to a certain duration of rest period for a corresponding number of consecutive working days. However, the employer had no roster system to inform him of these rest periods. The operations manual also provided that he had to return company phone calls and be ready to perform work duties within a specified time limit unless he was on scheduled annual leave or days off, and was prohibited from consuming alcohol 12 hours prior to reporting time.

The employee was asked to deal with some maintenance work on 8 December 2016 but he did not turn up to work. He could not be reached on his work phone either. The employer emailed him asking for his whereabouts but his response was evasive. He claimed that it was customary to be rostered with no duties two days prior to his annual leave, which was scheduled to commence on 14 December 2016. He was asked to attend a meeting on 13 December 2016 but he did not show up.

Upon returning to work from annual leave on 31 December 2016, the employee was summarily dismissed by the employer for his unauthorised absence from duty without a valid reason.

Employee's Claim

The employee alleged that during his employment he was either on flight duty or standby duty except when he was on annual leave. Hence, he was not granted statutory rest days as required under the Employment Ordinance (EO) (the Rest Day Pay Claim). He also alleged that there was no justification for the summary dismissal and he should be paid wages in lieu of notice on termination (the Wrongful Termination Claim).

DC’s Decision

The DC allowed the Rest Day Pay Claim but dismissed the Wrongful Termination Claim.

1. Rest Day Pay Claim

The DC accepted the employee's evidence that he was required to be contactable by his work phone whenever he was not flying. The employer's case was that the requirement of being contactable did not equate with being designated on standby and there was a "mutual understanding" that all of the employee’s non-flight days were considered as rest days. However, the employer’s evidence did not support the existence of the alleged "mutual understanding".

The issue was whether, on proper construction of the provisions in the employment contract and the operations manual, the requirement to be contactable equated to being on standby duty.

The DC considered that if the employee is truly on a rest day, he should be entitled to abstain from working. For example, the employee would be free to consume alcohol during his scheduled rest days and would refrain from doing so if he was put on standby duty.

The employment contract and the operations manual required the employee to answer his work phone, perform duties within a specific time limit and not consume alcohol 12 hours before the reporting time. The employee was effectively on standby duty when he was not on active duty, as he was not free to do whatever he wanted, like consuming alcohol.

The DC found in favour of the employee and held the employer liable for the Rest Day Pay Claim for more than 120 untaken rest days, which was assessed at over HK$660,000.

2. Wrongful Termination Claim

The DC did not accept the employee’s case that he was entitled to be absent from work from 8 to 13 December 2016 because he was taking his rest days. No contemporaneous evidence supported this position, which the employee had not articulated during his employment. Evidence did not support the alleged customary day off before the scheduled annual leave either.

The DC found that the employee’s absence from 8 to 13 December 2016 was without valid reason and unauthorised, and dismissed the wrongful termination claim.

Lessons for Employers

Employers must ensure that their employee is entitled to abstain from working for 24 hours on a statutory rest day. Any constraint that the employer imposes on what the employee may do during those 24 hours (e.g., the employee must be on standby to answer work calls, report for duty within a specified timeframe or must not consume alcohol), may disqualify it as being a statutory rest day.

Failure to grant at least one statutory rest day in every period of seven days is an offence. The EO does not require an employer to pay for a statutory rest day; that is a matter for the parties' agreement. However, uncertainty about the appointment of statutory rest days as well as whether those days are paid, can give rise to potential claims (and criminal liability), as the above case illustrates. Another area where liability may arise is if the employer grants more than one rest day in a period of seven days, say, two days off, and it is unclear which of those two days off is the statutory rest day. In this scenario, there may be a risk that both days may be treated as statutory rest days. This may give rise to additional liability if, for example, a statutory holiday falls on one of those two statutory rest days and the employer would need to grant another day off. Therefore, it is important for employers to appoint the statutory rest day clearly and set out whether it is paid, and if yes, how much will be paid for that day.

Summary dismissal is a serious step for employers to take against an employee. The courts regard it as akin to capital punishment (in the employment law world) as it deprives the employee of various entitlements, such as wages in lieu of notice. An employee is more likely to sue the employer not only to clear their name but also to recover the amounts they have been deprived of because of the summary dismissal. Employers should consider whether it makes commercial sense to summarily dismiss an employee, given the time and financial costs of defending a claim made by an employee will often be greater than the amount of wages in lieu of notice required to terminate the employee by notice. Of course, there may be situations where the employer must proceed with summary dismissal (e.g., when there is a statutory prohibition on terminating an employee entitled to statutory sickness allowance by notice). In those situations the employer should ensure that it has cogent evidence to support the summary dismissal before proceeding.

The judgment is available at the following link:

https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=133147&currpage=T