Not a rest day when the employee is on standby – By Joe Choy, Of Counsel at Eversheds Sutherland
It may not qualify as a statutory rest day if the employee is required to be on standby (and is subject to restrictions on what the employee may not do) regardless of whether the employee actually worked on the day. A failure to grant a statutory rest day of a continuous period of 24 hours in every seven day period could give rise to criminal liability.
Where an employee is entitled to more than one day off/rest day in a week, in the absence of any intention to the contrary expressed in the employment contract, there is a risk that all those days may be interpreted and considered as statutory rest day.
Introduction
Under the Employment Ordinance, employees who are under a continuous contract are entitled to abstain from work for a period of at least 24 hours in every seven days (i.e. a statutory rest day). Employers must grant statutory rest day in addition to statutory holidays and are not allowed to contract out such obligation.
Employees working in certain industries may often be required to be on standby and to remain accessible by the their employers on a rest day/day-off. As such, uncertainty lies at whether such days could still be treated as a rest day/day-off. In Breton Jean v. HK Bellawings.Jet Ltd (28/11/2022, CACV101/2022) [2022] HKCA 1736 (link to full judgement), the Court of Appeal addressed this very issue.
Facts
In Breton Jean v. HK Bellawings.Jet Ltd, the Plaintiff, Mr. Jean was a pilot of the Defendant jet management company (the “Company”). As provided in the employment contract, Mr. Jean had no regular working hours. He was required to perform standby duty when the Company considered to be necessary. When he is on standby, Mr. Jean must keep his work mobile phone or pager on so as to allow the Company to reach him. The employment contract also provided in detail that Mr. Jean must answer paging or phone calls from the Company within 1 hour of receipt of the page or call, and to perform flying duties within a “reasonable period of time”, which is defined to mean 4 hours upon receiving the Company’s instruction.
As a result, among other claims, Mr. Jean argued that such days on which he was assigned standby duty (“Standby Day”) should not qualify as a rest day/day-off and the Company had failed to pay him wages for 135 unpaid and untaken rest days from July 2015 to December 2016. On the other hand, the Company argued that it was the “mutual understanding” of the parties that Mr. Jean would be considered to be on day-off when he was not flying or on scheduled annual leave or resting even though he was required to be accessible and available to report for duty on short notice. As long as Mr. Jean did not actually provide service to the Company, he should be treated to be on day-off. The District Court held in favour of Mr. Jean and the Company lodged an appeal arguing that the learned judge had erred in finding that “day-off” excludes Standby Days.
Decision
The Court of Appeal upheld the decision of the District Court. Since the employment contract provided no definition as to what precisely constitutes a “day-off”, the Court adopted the ordinary language in its interpretation and found that a person should be not regarded as being on day-off if he/she is on duty and vice versa, regardless of whether he/she actually worked. The Court also found support to this interpretation from the other clauses within the employment contract. It was explicitly provided that any period of time that Mr. Jean was designated to be on standby duty would constitute a “Duty Period” and he would be considered to be “on duty”. The fact that Mr. Jean was required to be on standby unless he was on “domestic day-off”, “resting” or “scheduled annual leave” also demonstrated the distinction between a Standby Day and a rest day/day off.
The Court further found that Mr. Jean was entitled to rely on the definition of a statutory rest day under the Employment Ordinance to support his interpretation of a day off. While a day off may not bear the same meaning as a statutory rest day, the statutory definition is “clearly relevant” and the two concepts should be construed as intended to bear the same meaning unless there is any contrary indication. In Mr. Jean’s case, the Court noted that the employment contract was stipulated to be governed by Hong Kong law and did not expressly distinguish a day off from statutory rest day.
In Leung Ka Lau v Hospital Authority (2009) 12 HKCFAR 924 (link to full judgement), the Court of Final Appeal held that the time during which a doctor was on-call (i.e. the period which the doctor is not entitled to abstain from work and is required to remain within 30 minutes of the hospital, not to drink alcohol, and to be mentally ready to respond to calls for his/her services) could not by its nature qualify as a Statutory Rest Day. The Court of Appeal in the present case was of the view that Mr. Jean was subject to similar restrictions as that in Leung while on standby and that, in the absence of any express distinction in the contract, day off in Mr. Jean’s employment should bear the same meaning as the concept of statutory rest day.
Takeaway for HR professionals
It is important for an employer to ensure that its employees are entitled to abstain from working for 24 hours on a statutory rest day. If an employee is subject to certain restrictions during those 24 hours (e.g. he/she must be available to answer calls and report for duty) then such day is unlikely to be considered a statutory rest day. Failure to grant at least one statutory rest day in every period of seven days is an offence.
Another important lesson is that an employer should clearly identify in the employment contract any contractual day off which is not intended to be subject to the same treatment as statutory rest day. E.g. where an employee is entitled to two days off in a week and the employment contract does not expressly distinguish the two, there is a risk that both days may be considered as statutory rest days. As such the employer should expressly appoint one as the statutory rest day and identify the other as contractual (and set out the intended treatment of such contractual day off in the employment contract).
