Hong Kong court finds that pilot’s “standby” time did not constitute as rest days for the purposes of the Employment Ordinance

Facts

Mr. Breton Jean (“the Employee”) was employed by Bellawings Jet Limited (“the Company”), as a lead captain who had both flight and ground duties, including monitoring aircraft maintenance. Under his employment contract, the Employee had no regular working hours and was required to work on demand. He was also required to be on standby duty whenever the Company considered necessary. When he was on standby duty, he would be required to be on call and accessible by phone, and he had to answer phone calls within one hour of receipt of a call and subsequently perform the necessary flying duties within a reasonable period of time.

The Company’s policies stated that unless crew members were on annual leave or currently engaged in work, they were considered to be on standby.

The Employee was summarily dismissed by his Employer due to his unauthorised absence from work on a number of consecutive occasions where he was asked to attend meetings from the period of 8 December to 13 December 2016, despite his Employer trying to contact him multiple times.

In April 2017, the Employee brought a claim against the Employer at the Labour Tribunal for wages in lieu of notice and rest day pay. The claim was subsequently transferred to the District Court. The Employee claimed for:

(i) two months’ payment in lieu of notice (as the Employee alleged that he was wrongfully terminated); and

(ii) 130 days of unpaid and untaken rest days.

The Employee’s argument was that when he was not on flight duty, he was required to be contactable by his work phone and was therefore on standby duty. Therefore, he was never provided with rest days during his employment and believes that these rest days had accumulated throughout his employment.

Law

The relevant provisions in the Employment Ordinance (“EO”) in this case are as follows:

• Section 17(1) of the EO provides that “… every employee who has been employed by the same employer under a continuous contract shall be granted not less than 1 rest day in every period of 7 days.”

• Section 19(1) of the EO provides that “…no employer shall require an employee to work on any of his rest days.”

• Rest day is defined in section 2 of the EO as “a continuous period of not less than 24 hours during which an employee is entitled under Part IV to abstain from working for his employer.”

Issues

1. Should the “off days” granted by the Employer during which the Employee was required to be on standby mode be considered as “rest days”?

2. Was there a justification for the summary dismissal of the Employee?

Findings

1. Should the “off days” granted by the Employer during which the Employee was required to be on standby mode be considered as “rest days”?

No.

The employer had argued that they had a mutual understanding with the Employee that when he was not flying this would be considered to be “off days” or rest days. They also argued that given the nature of the Employer’s business, it required its senior pilots to exercise a degree of flexibility and try to accommodate any last-minute flying schedules if necessary.

However, the Court found that this mutual understanding did not exist and that if a crew member was truly on a rest day, he/she should be entitled to abstain from working completely. Therefore, the requirement to report for duty within four hours (which was stated under their policy) did not constitute a rest day.

2. Was there a justification for the summary dismissal of the Employee?

Yes.

The Court held that summary dismissal was justified on the grounds that the Employee was absent without authorisation or a valid reason (in addition to other factors of the case, such as that the Employee had misconducted himself on numerous occasions in the past and was dishonest about his whereabouts).

Key Takeaways

• Employees should not be directed to work or be on standby duty during their rest days. Any restrictions on what the employee may not do during any period of rest may not constitute a rest day under the Employment Ordinance. A failure to grant a rest day of a continuous period of 24 hours in every seven day period is an offence.

• It is crucial to appoint rest days. For companies that grant regular rest days, the companies should specify the rest days in the employment contract. For companies which grant rest days on an irregular basis, they must inform their employees orally or in writing of the appointed rest days before the beginning of each month.

• Many companies in Hong Kong offer a five-day work week (i.e. Monday to Friday), and two days off (i.e. Saturday and Sunday). The risk of not specifying which of those two days off is the statutory rest day is that both days may be considered as statutory rest days. If so, when a statutory holiday falls on a Saturday (which may be treated as a statutory rest day), the employee would be entitled to an alternative day off. As no statutory holiday falls on a Sunday, it is advisable to appoint Sundays as rest days.

How we can help you

We would be pleased to review your employment contracts and employee handbooks to ensure that all policies in regard to employee’s rest days are clearly stated to ensure that claims are not brought in the future.

BRETON JEAN v. HK BELLAWINGS JET LTD [2021] HKDC 46 - full judgment here.