Read the full judgment text of HCA 16883/1999 on BabelCite. This High Court CFI judgment was delivered on 9 February 2004 before Hartmann J.
Civil law – contract of employment – breach of contract – disciplined services – Civil Service Regulations (CSRs) – 'stand-by' duty versus 'on call' duty – overtime allowance – time off in lieu – inherent requirement of employment – Correctional Services Department – 'overnight on call' duty – Limitation Ordinance (Cap 347) s.4(1)(a) and s.26 – deliberate concealment of breach of duty. The plaintiffs, 3,624 serving or former officers of the Correctional Services Department ('CSD'), claimed damages for breach of contract, alleging that since 1 June 1985, in performing 'overnight on call' duty away from their homes and outside conditioned hours, they were denied a reduced overtime allowance or time off in lieu to which they were contractually entitled under CSR 668 for 'stand-by' duty – the duty required them to remain in the immediate vicinity of penal institutions overnight, ready to report for active duty in uniform within 15 minutes if called. The first core issue was whether 'overnight on call' constituted 'stand-by' duty under CSR 668 or 'on call' duty under CSR 669, an inherent requirement of the job covered by their salaries – the court held that it was correctly classified as 'on call' duty and an inherent requirement of employment covered by the plaintiffs' higher disciplined services pay scale. The second core issue was whether the six-year limitation period under s.4(1)(a) of the Limitation Ordinance (Cap 347) was extended under s.26 by reason of deliberate concealment – the court held that the plaintiffs' submissions on limitation were without substance. On the first issue, the court drew a distinction between 'stand-by' (presence at the officer's place of work with restricted movement) and 'on call' (continuously and immediately available from home, another fixed location, or via paging device), applying CSR 669, its predecessor CSR 681, and the House of Lords decision in Suffolk County Council v Secretary of State for the Environment [1984] ICR 882, and finding that the immediate vicinities of penal institutions were residential and recreational in character, not places of work – Findlay J's first instance judgment in Shau Lin Chi v Secretary for Justice [1998] 4 HKC 562 was not followed, and European Court judgments in Jaeger (C-151/02) and SIMAP [2001] ICR 1116 were distinguished as construing a health and safety directive rather than contractual compensation – the special allowance introduced in February 1989 on the recommendation of the Rennie Committee (originally $50, later $123 per duty) compensated for the hardship of performing the duty away from home, not for overtime. On the second issue, applying Cave v Robinson Jarvis & Rolf [2003] 1 AC 384, the court found no evidence of deliberate concealment: the 1986 memorandum from the Secretary for the Civil Service contradicted the plaintiffs' interpretation, the 1988 CSD memoranda to the Rennie Committee accurately described the duties, and the Commissioner of Correctional Services had himself expressed concern about the lack of compensation. The plaintiffs' claims were dismissed and costs awarded to the defendant; an appeal was subsequently dismissed (CACV 54/2004, 7 November 2005).
Legal issues: Whether 'overnight on call' constitutes 'stand-by' duty under CSR 668 · Whether s.26 Limitation Ordinance extends the six-year limitation period
Outcome: Plaintiffs' claims for damages for breach of contract dismissed.
Cited by 4 cases