Scott Williams v. Cathay Pacific Airways Ltd

HCMP 2399/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2399 OF 2010

(ON AN INTENDED APPEAL FROM HCLA NO. 24 OF 2009)

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BETWEEN

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Before: Hon Tang Ag CJHC and Fok JA in Court

Date of Hearing: 11 May 2011

Date of Judgment: 11 May 2011

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JUDGMENT

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Hon Tang Ag CJHC:

1.This is the Claimant's application for leave to appeal under section 35A of the Labour Tribunal Ordinance (Cap 25) ("LTO") under which leave to appeal may be granted when an appeal involves questions of law of general public importance.

2.The background to this application can be taken from paras 2 to 5 of the judgment of Chu J dated 10 November 2010 as follows:

"2.   The claimant is a Second Officer (SO) employed by the defendant ('CPA').   By a letter of employment dated 13 June 2006, the claimant was employed as a Direct Entry Second Officer (DESO).  Before joining CPA, the claimant worked with the Royal New Zealand Air Force where he started pilot training in 1995. 

3.   The claimant’s employment with CPA commenced on 21 August 2006.  He completed his 12 months’ probation on 21 August 2007.  On 20 November 2007, the claimant achieved Grade A status.  He then underwent and completed three training modules, the last of which was completed on 22 April 2008.  On 19 May 2008, he had his technical assessment (STI) and was assessed to be satisfactory. 

4.   On 20 October 2008, the claimant was assessed by the Upgrade Review Board (URB) to be suitable for promotion to Junior First Officer (JFO).  As from 20 October 2008, he has been paid a bypass pay (BPP) pursuant to clause 10.2 of the Conditions of Service 1999 (COS 99). 

5.   On 3 February 2009, the claimant commenced proceedings in the Labour Tribunal.  The basis of his claim as stated in Form 2 was CPA’s failure to pay bypass pay prior to 20 October 2008. In the Supplementary Statement sent on 16 February 2009, the claim is put on the basis of compensation represented by the amount of BPP that the claimant would have received before 20 October 2008.  The stated ground is that CPA had delayed in reviewing or assessing the claimant’s suitability for promotion. The period of delay is said to be from 21 February to 20 October 2008 (i.e. six months)."

3.The Claimant's claim turns on the construction of provisions of the COS99 which are set out in para 7 of Chu J's judgment.

4.Mr John Scott SC, appearing for the Claimant, submits that the Claimant was employed under a standard terms contract.  He said that according to the latest figures available to the Labour Tribunal, by 2008, about 150 Second Officers ("SO") were employed by the Defendant ("CPA") under contracts which contained similar provisions.

5.Mr Scott relies on the following observation of Bokhary PJ in Swire Properties Ltd & Others v Secretary for Justice (2003) 6 HKCFAR 236:

"29.   … The resolution of a 'one-off' question of construction merely affects the rights and liabilities of the parties to the contract concerned.  It will be of no general legal interest.  But where the true construction of a standard clause is in dispute, the resolution of the question of construction involved will be a matter a general legal interest - sometimes great general legal interest."

6.However, Bokhary PJ was not concerned with a contract of employment used by an employer albeit one which the employed used for 150 or so employees.  His lordship had in mind standard terms contracts such as charter parties or construction and engineering contracts, which are used widely throughout an industry.

7.Mr Scott also mentions that this case concerns labour relations in the Hong Kong aviation industry.  In his written submissions Mr Scott referred to the Defendant as "Hong Kong's national carrier".  I will not pause to consider whether the Defendant is indeed Hong Kong's national carrier.  It has no significance here.  Mr Scott also said in his written submission that aviation has a constitutional significance in Hong Kong, and mentioned Articles 128 to 135 of the Basic Law.  He also said that the proceedings had been widely reported in the media in Hong Kong.

8.This case turns on the construction of a contract of employment.  It is a labour dispute.  The fact that the Claimant was employed in civil aviation is irrelevant.  As for media interest, that is not a reliable guide to the importance of the legal issues involved.  Cases tend to be reported for their human interest rather than the importance of the legal issues involved.

9.No question of law of general public importance is involved here.  I would refuse leave to appeal.

Hon Fok JA:

10.I agree.

Hon Tang Ag CJHC:

11.The application is dismissed with costs to be taxed unless agreed.

Mr John Scott, SC instructed by Messrs Robertsons for the Claimant

Mr Adrian Huggins, SC instructed by Messrs Mayer Brown JSM for the Defendant