Tam Wai Mei v. Cathay Pacific Airways Ltd

cacv 232/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 232 of 2005

(on appeal from HCLA NO. 95 of 2004)

______________________

BETWEEN

______________________

Before: Hon Rogers Acting CJHC, Le Pichon JA and Burrell J in Court

Date of Hearing: 7 October 2005

Date of Judgment: 7 October 2005

Date of Handing Down Reasons for Judgment: 2 November 2005

________________________________

REASONS FOR JUDGMENT

________________________________

Hon Rogers Acting CJHC:

1.This is an appeal from a decision from Yam J given on 10 June 2005.  The matter before the judge was an appeal from a decision of the Deputy Presiding Officer of the Labour Tribunal.  The order in the Labour Tribunal had been that the defendant should pay the claimant $25,069.90 with interest pursuant to section 39(3) of the Labour Tribunal Ordinance, Cap. 25.  The judge dismissed the appeal by the defendant.  At the conclusion of the hearing, this court allowed the appeal with costs here and below.  We now give the reasons.

Background

2.The claimant was employed by the defendant in June 1998 as a ground crew member.  In the letter of appointment dated 5 June 1998 her position was termed “Airport Services Officer 3 – SD (Airside)”.  The employment was terminated in February 2004.  The circumstances of the termination do not concern this court other than the fact that, apparently after the termination, the claimant made enquiries at the Labour Department following which she lodged a claim in the Labour Tribunal in respect of statutory holidays. 

3.During the course of the claimant’s employment she worked between 43.5 and 44 hours per week on a shift basis.  The claimant was notified the days on which she was required to work by roster which was supplied on a monthly basis in the week before the beginning of each month for which the roster applied.  The roster was marked clearly with the days and the hours on which the claimant was required to work: it was marked on those days when the claimant took leave and it was marked “off” on 2 days in each week when the claimant was not required to work.  

4.It is the defendant’s case that the Conditions of Service under which the claimant was employed relevant to the present case are in section 7(C) which reads as follows:

“	(C)	Public Holidays With Pay In Lieu Of Statutory Holidays
		Employees are entitled to Public Holidays, with pay, as gazetted by the Government.  Public Holidays will not be granted to certain shift employees whose roster patterns will include an equivalent number of holidays as compensation.
		Shift employees whose rosters require them to work through Public Holidays will normally be given time off in lieu or otherwise receive payment on daily paid rates as compensation, should the Company be unable to grant such time off.  The same will apply when a Public Holiday falls on a rostered day off.”

5.In the course of argument Mr Lau, who appeared for the claimant in this court, but not below, said that the claimant was never given a copy of the Conditions of Service when she joined.  It is also the claimant’s contention that she was not given the extract of the Conditions of Service which was referred to in the letter of 5 June 1998.

6.It is not clear whether the Presiding Officer found that the Conditions of Service and in particular condition 7(C) formed part of the terms of the contract of service.  In my view, whether it did or it did not does not affect the outcome of this case for reasons that which I will explain.  The question was not, indeed, dealt with by the judge below.

Statutory provisions

7.There are two relevant sets of statutory provisions which should be referred to.  The first are those relating to the grant of rest days.  These are contained in sections 17 to 21 of the Employment Ordinance, Cap. 57.  Sections 17 and 18 read as follows:

“	17.	Grant of rest days
		(1)	Subject to the provisions of this Part, 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.
		(2)	Rest days shall be in addition to any statutory holiday, or alternative holiday or substituted holiday, to which an employee is entitled under section 39.
	18.	Appointment of rest days
		(1)	Rest days shall be appointed by an employer and he may appoint different rest days for different employees.
		(2)	Subject to subsection (4), every employer shall, before the commencement of every month, inform each employee orally or in writing of his rest days in that month.
		(3)	The provisions of subsection (2) shall be deemed to be complied with if an employer exhibits in a conspicuous place in the place of employment and for so long as it applies a roster showing the days appointed to be rest days for each employee during the month.
		(4)	Subsection (2) shall not apply where rest days are appointed on fixed days in each period of 7 days on a regular basis.
		(5)	An employer may, with the consent of his employee, substitute for any rest day appointed under this section some other rest day-
			(a)	within the same month and before the rest day so appointed; or
			(b)	within the period of 30 days next following the rest day so appointed.”

8.The second set of provisions relate to the grant of the statutory holidays.  Statutory holidays are dealt with in section 39 and the following sections of the Ordinance.  Section 39(1) provides that an employee shall be granted a statutory holiday on the days which are listed and there are 12 of them.  Subsections 39(2)-(4) read as follows:

“	(2)	An employer may, instead of granting an employee a holiday on a statutory holiday, grant the employee an alternative holiday on another day (which is not a statutory holiday or a substituted holiday) within the period of 60 days immediately preceding or next following the statutory holiday, if the employer has notified the employee, either orally or in writing or by notice posted in a conspicuous place in the place of employment, of the day on which he will be granted the alternative holiday-
		(a)	where the alternative holiday is to be taken on a day within the period of 60 days immediately preceding the statutory holiday, not less than 48 hours before that day; or
		(b)	where the alternative holiday is to be taken on a day within the period of 60 days next following the statutory holiday, not less than 48 hours before the statutory holiday.
	(2A)	Subsection (2) shall apply to and in relation to a holiday under subsection (4) as it applies to and in relation to a statutory holiday.
	(3)	An employer and his employee may agree that another day shall be substituted for a statutory holiday or an alternative holiday or a holiday under subsection (4), if such substituted holiday falls within the period of 30 days of such statutory holiday, alternative holiday or holiday under subsection (4).
	(4)	Where-
		(a)	a statutory holiday falls on a rest day, or in the case of an employee who is a young person, on a day on which, by virtue of the Employment of Young Persons (Industry) Regulations (Cap 57 sub. leg.), the employment of the employee in an industrial undertaking is not allowed, the employee shall be granted a holiday on the next day thereafter which is not a statutory holiday or an alternative holiday or a substituted holiday or a rest day; or
		(b)	a statutory holiday falls on the same day as that of another statutory holiday, an employee shall be granted a holiday on the next day thereafter which is not a statutory holiday or an alternative holiday or a substituted holiday or a rest day”

9.There is no the dispute in this case that the claimant was granted the rest days which were required to be given in accordance with sections 17 to 21 of the Ordinance.  In each week the claimant was not required to work on two days, making a total of 104 days per year.  The dispute in this case arises because it is the claimant’s case that she was entitled to the statutory holidays in addition to the days marked “off” on the roster.

10.In short it is the defendant’s case that the statutory requirements have been more than amply satisfied.  In the first place the claimant has been given rest days each week which comply with the provisions of sections 17 to 21 of the Ordinance.  Apart from that, the claimant has been notified, well in advance, of the statutory holidays upon which she would be required to work.  In each case when she was so required to work on a statutory holiday the roster specified at least an equivalent number of days “off” in the course of that month, let alone within 60 days of the statutory holiday, in addition to the rest days required by sections 17 to 21 of the Ordinance.

11.Mr Huggins SC, who appeared on behalf of the defendant, argued that the way in which the roster system worked was in accordance with the requirements of section 39 of the Ordinance.  The roster was provided well in time before each month and contained the necessary information.  On the basis that the terms of clause 7(C) of the Conditions were relevant, the claimant, as a shift employee, was allocated days “off” in the same month, if not week, whenever she was required to work on a public holiday. 

12.It will be noted that it was conceded by Mr Huggins that the heading of clause 7(C) was wrong in respect of the point made in respect of employees working on public holidays being able to receive payment on daily paid rates as compensation.  However, that matter does not arise in this case because the only suggestion that there may have been pay in lieu of public holidays was made in the course of the claimant cross-examining one of the defendant’s witness to the effect that some employees may never have taken a day off and may have sought to work and be paid overtime in lieu.  There was no evidence as to this.  The witness for the defendant did not have any knowledge that that took place.  In any event the claimant never suggested that she had so worked during the days marked “off” and had sought overtime in lieu; the suggestion put was that others had done so.

13.It can also be mentioned that the second sentence of the second paragraph of clause 7(C) appears to be relevant to the extent that if the claimant was allocated an “off” day which coincided with a statutory or public holiday she would receive payment on a daily rate as compensation.  That compensation was clearly to the extent that in that week in which the statutory or public holiday fell the claimant would not be allocated a further “off” day in addition to the required “off” days to comply with sections 17 to 21 and 39 of the Ordinance.  It may be mentioned that the defendant paid the claimant “Public Holiday Pay” or “PHP” for each day that there was a public or statutory holiday.  That was calculated on the basis of 1/20.5 of a month’s pay.  It was paid whether the claimant was required to work on the holiday or not.  It was thus a payment to compensate the claimant for not being allocated a day in a week when she was not required to work in addition to the statutory rest day, the statutory holiday (or alternative holiday), in effect taking the place of the day when the defendant would otherwise not have required the claimant to work.

14.Hence on the basis that clause 7(C) of the Conditions were applicable, I do not see that there has been any breach of the Ordinance.

15.Were it the position that clause 7(C) of the Conditions were not applicable to the claimant, it seems to me that the claimant’s position is likewise that she had been informed of the days when she had been required to work and of the days when she was not required to work in a manner and to the extent that complied, more than adequately, with the Ordinance.

16.The judge reached the conclusion that the claimant had not been accorded alternative holidays in accordance with section 39(2) of the Ordinance on the basis that her terms of contract were that she should have two rest days.  Albeit section 17 of the Ordinance allows for any number of rest days in a week, I see no warrant for the suggestion that the days marked “off” in the rosters that were supplied to the claimant should be treated as rest days under section 17 of the Ordinance.  There was certainly no contractual provision between the parties to that effect.  The rosters simply indicated the days when the claimant was not required to work, they were marked “off”.  In those circumstances the days marked “off” should be treated as complying with the provisions of the Ordinance unless there were any reason why that should not be so.

17.The Presiding Officer appears to have approached the case on the basis that section 39(2) requires that the notice given to the claimant should have specified which of the “off” days marked on the roster were in lieu of each particular statutory holiday.  In my view this is taking too narrow a construction of the Ordinance.  It is not warranted by anything in the Ordinance.  There is nothing to prevent the employer saying, in effect, to an employee “You are entitled to a statutory a holiday next month.  You will see from next month’s roster that I have required you to work on that statutory holiday but I have specified 4 days when you are not required to work, these you will see on the roster marked “off”.  Which of those days you chose to regard as the alternative holiday for the statutory holiday is of no relevance either to you or me, the fact is that you have at least a day when you are not required to work.  Since I cannot give you 4 days when you are not required to work, I will compensate you by paying you one working day’s pay in lieu.”  It seems to me that this course adequately complies not only with the letter of the Ordinance but, importantly, with the spirit of the Ordinance which requires the employer to inform the employee in writing when he or she will be given an alternative holiday in substitution that for a statutory or public holiday.

18.This court having come to the conclusion that the defendant succeeded on this appeal on its primary ground, argument was not heard in respect of jurisdiction.

Hon Le Pichon JA:

19.I agree.

Hon Burrell J:

20.I agree.

Mr Raymond Lau, instructed by Messrs Kwok, Ng & Chan, for the Claimant/Respondent

Mr Adrian Huggins SC and Mr Robin McLeish, instructed by Messrs Johnson, Stokes & Master, for the Defendant/Appellant