SCOTT WILLIAMS v. CATHAY PACIFIC AIRWAYS LIMITED

 HCLA 24/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 24 OF 2009

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. LBTC 1003/2009)

-----------------------

-----------------------

--------------------

DECISION

--------------------

1.  This is the defendant’s application for leave to appeal against the decision of the Deputy Presiding Officer made on 3 July 2009.  By the decision, the Deputy Presiding Officer determined that the claimant is eligible to receive bypass pay (BPP) as from 1 March 2008 under the Conditions of Service 1999 (COS99).  As to the amount of BPP that the defendant is liable to pay the claimant, the parties have agreed for the issue to be reserved pending the determination of the claimant’s eligibility to BPP prior to October 2008.  The determination of the quantum has been stayed as a result of the commencement of appeal proceedings by the defendant.

2.  By the Re-Amended Application for Leave to Appeal handed in to the court at the hearing of the leave application, the defendant raised a total of 11 grounds of appeal, with fairly lengthy elaborations of each ground.  Subsequent to the hearing, the defendant had on 17 September 2009 lodged with the court a Re-Re-Amended Application for Leave to Appeal.  The Re-Re-Amended Application for Leave to Appeal has deleted what were originally Grounds 2, 4, 6(a), 7(b) and 11 in the grounds of appeal as contained in the Re-Amended Application for Leave to Appeal.  Consequently, only eight grounds are advanced for the intended appeal.

3.  Under section 32(1) of Labour Tribunal Ordinance, cap.25, leave to appeal against the award or determination of the Labour Tribunal may only be granted where the same is (a) erroneous in point of law, or (b) outside the jurisdiction of the Tribunal.  The threshold onus of the applicant is to show that the intended appeal has arguable grounds for appeal.    

4.  The claim of the claimant in the Tribunal is for payment of BBP in respect of the period before 20 October 2008.  It is common ground that since then, the defendant has been paying him BBP in accordance with clause 10.2 of the COS99.

5.  As noted above, the decision of the Deputy Presiding Officer relates only to the issue of the claimant’s entitlement to BPP prior to 20 October 2008.  In the Reasons for Decision, the Deputy Officer identified six questions that had to be decided in the trial on liability: paragraph 20.  His analysis and findings on the six questions were set out in paragraphs 21 onwards of the Reasons for Decision on Liability. 

6.  The seven grounds of appeal relate respectively to the following holdings and findings:

(1)  Under paragraph 27, the Deputy Presiding Officer was of the view that it was “implicit in clause 6.2 of COS99 that the defendant would exhaust assessments of Second Officers (SO) before embarking on recruitment of Direct Entry First Officer (DEFO).

(2)  Under paragraph 29, the Deputy Presiding Officer rejected the defendant’s argument that under paragraph 7.1, Volume 1, Part 3, of the Operations Manual (which forms part of the employment contract), the defendant may at its discretion hold Junior First Officer (JFO) upgrade (or conversion) courses.  The importance of the conversion courses is that promotion to JFO will occur when a SO is allocated a conversion course.  He held that the defendant is required under paragraph 7.1 to hold Upgrade Review Board (URB) meetings when: (i) there are openings of First Officer positions; (ii) the defendant does not have suitable SO to fill the vacancies; and (iii) when there are SO ready for assessments.   The Deputy Presiding Officer noted that the defendant had in 2007 and 2008 recruited DEFO and the defendant lacked suitable SO to fill the vacancies.  He thus found there were requirements for technical and URB assessments for all SO who were ready during that period.  

(3)  Under paragraph 34, the Deputy Presiding Officer found that the claimant was ready for technical assessment as soon as he attained grade A standard on 20 November 2007.  On the basis that the claimant completed STI in 19 May 2008 and was assessed on 20 October 2008 by the URB as suitable for being upgraded to JFO, the Deputy Presiding Officer further found that it was probable that the claimant would be assessed as suitable had he been given an earlier opportunity for assessment.  Specifically, he found had the defendant held the technical and URB assessments without delay, the claimant would have completed STI by about January 2008 and would have been assessed by URB as suitable for upgrade by about February 2008. 

(4)  Under paragraph 35, the finding that in light of the need to recruit DEFO, the defendant was obliged to hold technical assessment for the claimant at an earlier time.

(5)  Under paragraph 38, the Deputy Presiding Officer rejected the defendants’ argument that because when the claimant completed 18 months of service with the defendant, there were a number of SO who were more senior than him, he could not be the next most senior SO suitable for promotion so as to be entitled to BPP under clauses 10.2 and 10.5 of COS99.  The Deputy Presiding Officer was of the view that had the defendant proceeded to conduct technical assessment at that stage, it was probable that some of the SO would have been assessed as unsuitable.  Relying on the SO URB results provided by the defendant and the failure rate as indicated, he concluded that the claimant would have been the next most senior SO suitable for promotion had he completed the STI and were assessed as suitable by the URB in February 2008.

(6)  Under paragraph 49, after finding the claimant never accepted the Policy on Crewing Freighter Aircraft - 2008, the Deputy Presiding Officer held that insofar as parts of the said Policy unilaterally alter his entitlement to BPP under clauses 10.2 and 10.5 of COS99, the claimant is not bound by them.  On this basis, he considered the question of whether retention of freighter captains beyond their retirement age after 1 January 2008 will trigger off entitlement to BPP depends on the effects of clause 10.2 of COS99.  As he construed “Captains” in the clause to include freighter and/or passenger captains, the Deputy Presiding Officer held in paragraph 53 that cases of retention of freighter captains beyond their retirement age after 1 January 2008 will trigger off entitlement to BPP.

(7)  Under paragraph 63, the Deputy Presiding Officer held that the date as from which the claimant became eligible to BPP is 1 March 2008.

7.  For the purpose of this decision, it is not necessary to set out the eight grounds in the Re-Re-Amended Application for Leave to appeal.

8.  Having considered these latest revised grounds of appeal and the written and oral submissions made by counsel on the defendant’s behalf, I am of the view that the applicant has met the threshold for granting leave to appeal.  Given that there will be a substantive hearing of the appeal, which may or may not be listed before myself, I will not in this Decision embark upon an analysis and evaluation of the merits of the proposed grounds of appeal.

9.  In summary, leave to appeal is granted to the defendant on the grounds set out in the Re-Re-Amended Application for Leave to appeal.