The vacation season is quickly approaching and pleasure is effervescent with many in Hong Kong planning to journey and have a good time with family members. Many employers are setting up logistical preparations and coordinating work cowl over the vacations which contain placing workers on standby to work if wanted – learn on for our dialogue a couple of current Hong Kong Courtroom of Enchantment resolution which confirmed that even when an worker on standby doesn’t find yourself having to carry out any work on a standby day, they have to nonetheless be granted correct relaxation days or days off in accordance with legislation and contract.
Background
In Breton Jean v 香港麗翔公務航空有限公司 (HK Bellawings.Jet Restricted) [2022] HKCA 1736, the Hong Kong Courtroom of Enchantment thought-about whether or not the times on which an worker was positioned on standby responsibility (however not really known as in to work), could possibly be thought-about to be “days off”.
Mr Jean (“Worker”) was employed by HK Bellawings.Jet (“Employer”) as a pilot. Underneath the employment contract which was ruled by Hong Kong legislation (“Employment Contract”), the Worker had no common working hours. He was required to work on demand and would even be placed on standby, throughout which he can be “on name” and should reply to the Employer’s name inside one hour and carry out any needed duties inside an affordable time frame.
In an Operation Guide, which was included as a part of the Employment Contract, it was said particularly that any standby responsibility constituted the Worker’s “responsibility interval”. It additionally offered that the Worker shall be entitled to in the future off each seven days, in addition to three days off each 14 days and eight days off each 28 days.
When the Worker was summarily dismissed by the Employer, the Worker claimed (amongst different issues) that the Employer owed him 135 days off and that he ought to obtain cost in lieu for these days. The Employer disagreed and contended that the Worker had already taken his days off, on days the place he was placed on standby however had not been known as to work. The primary occasion District Courtroom choose agreed with the Worker, and the Employer appealed.
Standby days usually are not days off
The Courtroom of Enchantment upheld the ruling of the District Courtroom, and located that it was clear that the Worker was not having a “break day” when being placed on standby below the Employment Contract – no matter whether or not he was really known as upon to report for responsibility. The Courtroom of Enchantment gave the primary causes under:
• the Worker was required to carry out standby responsibility at any time when the Employer thought-about it to be needed. When on standby responsibility, the Worker needed to be mentally able to report back to the Employer. He was not allowed to drink alcohol whereas on standby, and needed to stay accessible and carry out duties as and when required;
• the Operation Guide offered that any time frame that the Worker spent on standby responsibility would kind a part of his “responsibility interval”. As a matter of peculiar language, the Worker shouldn’t be thought to be being on a break day if he was on responsibility; and
• based mostly on the factual circumstances of this case, the events had meant the idea of a break day to be the identical as a “relaxation day” below the Employment Ordinance (Cap. 57) (“EO”), in order that the events’ contractual rights and obligations are aligned with the statutory ones. A day that the Worker spent on standby couldn’t represent a “relaxation day” below the EO.
Key takeaways
Underneath the EO, workers employed below a steady contract are entitled to a minimum of one relaxation day each week – that’s, a full 24-hour day throughout which workers do not need to work. Employers ought to grant all workers a minimum of in the future off every week for relaxation, and meaning they have to not be on standby on the break day. Additional, if a statutory vacation (for instance Christmas Day or the approaching first day of January, that are each Sundays) occurs to fall on a relaxation day, workers are entitled to take the vacation on the next working day.
Moreover, if employers intend to grant further days off to workers than what’s statutorily required (that are along with the staff’ annual depart entitlements), employers can impose further guidelines in respect of the additional days off, and draw a distinction from the statutory relaxation days, to forestall these further days off from falling throughout the statutory relaxation day regime.
