BRETON JEAN v. HK BELLAWINGS JET LTD

DCCJ 3612/2017

[2021] HKDC 46

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3612 OF 2017

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BETWEEN

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JUDGMENT

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A. INTRODUCTION

1.  The defendant (“Bellawings”) is a business jet management company.  By a written agreement dated 13 July 2015 (“Employment Contract”), Bellawings employed the plaintiff (“Mr Breton”) as Captain.  Mr Breton’s employment commenced on 12 July 2015.  One of the conditions stipulated in the Employment Contract was that Mr Breton held a valid Federal Aviation Authority Air Transport Licence, with a valid Bombardier Challenger CL-604 aircraft type rating.

2.  By Bellawings’ letter dated 10 December 2015, Mr Breton was promoted to the position of Lead Captain of VPCEE with effect from 17 December 2015.  VPCEE was a Bombardier jet registered under the Civil Aviation Authority of the Cayman Islands.

3.  On 31 December 2016, Bellawings summarily dismissed Mr Breton.  It is Mr Breton’s case that he was wrongfully terminated. 

4.  In April 2017, Mr Breton lodged a claim in the Labour Tribunal to recover (1) wages in lieu of notice and (2) rest day pay.  Mr Breton’s claim was subsequently transferred to the District Court.

5.  In these proceedings, Mr Breton pursues the following claims:-

(1) two months’ payment in lieu of notice;

(2) 43 days of unpaid and untaken rest days during the period of 12 July to 31 December 2015;

(3) 87 days of unpaid and untaken rest days during the period of 1 January to 31 December 2016.[1]

6.  Bellawings disputes Mr Breton’s claims. Bellawings maintains that it was justified in terminating Mr Breton’s employment summarily on 31 December 2016.  Mr Breton’s claims for rest day pay are contested by Bellawings on both liability and calculation. 

7.  Very broadly therefore, there are three issues I need to resolve.  The first is whether there was justification for the summary dismissal of Mr Breton on 31 December 2016.  The second is the question of Mr Breton’s rest day entitlement under the Employment Contract.  Assuming Mr Breton prevails on the second question, the third involves an assessment of the correctness of Mr Breton’s calculation of his rest day pay entitlement.

8.  Mr Breton was legally represented until shortly before the commencement of the trial.  At the trial, Mr Breton acted in person and Bellawings was represented Mr Lawrence Ngai of counsel (“Mr Ngai”).

9.  The parties each called one factual witness.  Mr Breton himself gave evidence and Bellawings called Ms Choy Yeuk Ka (Ann) (“Ms Choy”).  

10.  Ms Choy is and was at all material times Bellawings’ Human Resources Manager.  She signed the Employment Contract and the letter dated 31 December 2016 terminating Mr Breton’s employment (“Termination Letter”).  However, Ms Choy fairly accepted that her knowledge of many matters was only derived from reviewing the correspondence between Mr Breton and other employees of Bellawings: paragraph 8 of Ms Choy’s statement.

11.  I propose to first deal with the rest day pay claims and then proceed to deal with the issue of whether Bellawings was justified to summarily dismiss Mr Breton.  It is Mr Breton’s position that his entitlement to rest day pay is not defeated even if Bellawings was justified to summarily dismiss him, such entitlement being an accrued benefit at the time of the dismissal: paragraph 29 of Mr Breton’s Closing Submissions.  Mr Ngai does not contend to the contrary.

B. Mr Breton’s claims for rest day pay

12.  The rival contentions as regards Mr Breton’s entitlement to rest day pay are as follows.

13.  Mr Breton contends that during the entirety of his employment from 12 July 2015 to 31 December 2016 (“Employment Period”), he was either on flight duty or standby duty, except such time when he was on annual leave, and as a result, he was not provided with the days off accumulated under the Employment Contract during the Employment Period: paragraphs 9-11 of the Statement of Claim.

14.  Bellawings contends otherwise.  It is Bellawings’ case that all days on which Mr Breton was not flying and was resting at home or at another location were considered by the parties “off days” or rest days (“Alleged Understanding”).  Bellawings says that the Alleged Understanding can be gleaned from the relevant correspondence passing between the parties during the Employment Period (“Relevant Correspondence”).[2] However, given the nature of Bellawings’ business, it required its senior pilots to exercise a degree of flexibility and to try to accommodate any last minute flying schedules if necessary and assuming that they are able to do so.  See paragraphs 15-16 of the Defence.

15.  Mr Breton denies the existence of the Alleged Understanding and contends that he was required to be accessible by the work phone he was given and he was, as such, on standby duty: paragraphs 10-11 of the Reply.

16.  The crucial difference between the parties is therefore whether Mr Breton was regarded as being placed on standby duty on the basis that he was required to be accessible on his work phone.

B1 The contractual/ statutory framework

17.  Mr Breton’s entitlement to rest day pay is of course governed by the terms of the Employment Contract and the relevant statutory provisions under the Employment Ordinance Cap 57 (“Ordinance”). There is no dispute between the parties that, in addition to the Employment Contract itself, the parties’ relationship was also contractually governed by additional rules and regulations promulgated under Bellawings’ prevailing policies: Clause 14 of the Employment Contract.  Both parties place reliance on Bellawings’ Operations Manual – Part A (“OMA”).  There are two revisions, Revision 1[3] (“OMA Rev 1”) and Revision 2 which came into effect on 19 February 2016 (“OMA Rev 2”).

18.  The following provisions are relevant.

(1) Clause 6 of the Employment Contract provides:

“You have no regular working hours and will be required to work on demand, which is at all times subject to amendment on reasonable notice by the Company. You will be required by the Company or Aircraft Owner to perform standby duty where the Company considers that to be necessary.

If you are designated to standby duty, you will be on call and accessible by payer and/or phone.  You shall answer paging or phone calls within 1 hour of receipt of the page or the call and perform the necessary flying duties within a reasonable period of time.”

(2) Paragraph 7.8 of OMA Rev 2 provides:[4]

“Crew members shall:

• Not work more than 7 consecutive days before being given a day off;

• Have at least 3 days off in any consecutive 14 days, of which 2 days must be consecutive;

• Have a minimum of 8 days off in any consecutive 28 days.”

(3) Paragraph 14.7 of OMA Rev 1 provides:

“Company Mobile phones is [sic] assigned to every crew member with a company mobile phone.

All Crewmembers are required to be contactable by phone unless they are on scheduled annual leave or DDO,[5] and must return any company phone call during the standby period within 1 hour and be ready to perform necessary duties within a reasonable period of time (determined at the time of duty assignment).”

(4) Paragraph 14.8 of OMA Rev 2 (which superseded paragraph 14.7 of OMA Rev 1) provides:

“Every crew member is issued with a company mobile phone. All crew members are required to be contactable on their company phones unless they are on scheduled annual leave or resting, and must report for duty within 4 hours.”

19.  It is Mr Breton’s case that “The Avoidance of Fatigue in Aircrews CAD 371 (2^nd Edition)” guideline (“CAD Guideline”) published by the Hong Kong Civil Aviation Department in accordance with Part VI of the Air Navigation (Hong Kong) Order 1995 (“ANO”), which took effect since 1 July 1997 was implied into the Employment Contract by operation of law: paragraphs 5-6 of the Statement of Claim.  Paragraph 29.9.3 of the CAD Guideline provides:-

“Flight Crew and Cabin Crew shall:

29.9.3.1. Not be rostered for duty on more than 7 consecutive days before being given a day off.

29.9.3.2. Shall have a minimum of 8 Days Off in any consecutive 28 days and

Note: In this context a “Day Off” means periods free of all duties available for leisure and relaxation…”

20.  As explained at paragraph 22 of Mr Breton’s statement, he principally relies on the CAD Guideline for the definition of “Day Off”, namely a period free of all duties available for leisure and relaxation.  Bellawings denies that the CAD Guideline is applicable, for the ANO only applies to the operator and crew of an aircraft registered in Hong Kong.  As stated earlier, VPCEE was registered in the Cayman Islands.

21.  I do not regard the issue of strict applicability of the CAD Guideline as material to the determination of what is meant by “Day Off”.  Even if the CAD Guideline is not strictly applicable, the fact that it has taken effect since 1 July 1997 would be a relevant factual matrix against which the Court may take into account when construing the Employment Contract.

22.  In any event, Bellawings’ case does not draw a distinction between “rest days” and “Days Off”: paragraph 16.2 of the Defence and compare paragraph 14.7 of OMA Rev 1 (the reference to DDO) and paragraph 14.8 of OMA Rev 2 (the reference to resting). 

23.  Although Mr Ngai in opening objected to Mr Breton’s reliance on section 2 of the Ordinance on the basis that it was not pleaded, that objection was not maintained in his closing submissions.  Under section 2 of the Ordinance, “rest day” is defined as meaning a continuous period of not less than 24 hours during which an employee is entitled under Part IV (ie sections 16-21) to abstain from working for his employer. 

24.  I shall return to the above framework when I deal with the parties’ submissions on the rest day pay claim and presently turn to the evidence adduced by the parties.

B2. Evidence on the rest day pay claim

25.  The facts set out in this Section B2 are either not in dispute, or are the result of my findings of fact.

26.  As stated above, Mr Breton’s Employment Period commenced on 12 July 2015.  At the time of the execution of the Employment Contract, OMA Rev 1 was in place and operative until it was superseded by paragraph 14.8 of OMA Rev 2 on 19 February 2016. 

27.  It is Mr Breton’s evidence that he was required to be contactable by his work phone whenever he was not flying during the whole of the Employment Period: paragraph 17 of Mr Breton’s statement.  I accept Mr Breton’s evidence.  Indeed, Mr Ngai in closing does not seriously suggest otherwise.  The proposition advocated by Mr Ngai is that the requirement of being contactable does not equate with being designated on standby duty.

28.  The purpose of paragraph 14.7 of OMA Rev 1 and paragraph 14.8 of OMA Rev 2 may be discerned from an email dated 15 December 2015 from Mr Charles Hunt (“Mr Hunt”), Bellawing’s Chief Pilot, to all pilots (including Mr Breton) and flight attendants.  Mr Hunt said in that email:-

“As a result of recent episodes, it has become apparent that clarification is needed to ensure aircraft are properly covered by Pilots and Flight Attendants.

The Operations Manual-A Chapter 14.7 refers to being able to be contacted on your company phone within 1 hour. It does not state that you should be able to get to the FBO[6] within 4 hours ready to operate, but that will be the new expectation and incorporated in the next OM A revision…

… Everyone has a company phone which is to be ON at all times, except when airborne, sleeping or on leave.

As you are aware, the schedules change frequently for a variety of reasons, and the owners have every right to be ready to fly within 6 hours if it is serviceable.” (emphasis added)

29.  Two matters are apparent.  First, the requirement under paragraph 14.7 of OMA Rev 1 to return call within 1 hour and be ready to perform necessary duties within a reasonable time was replaced by a more definite requirement to report for duty within 4 hours.  Secondly, the more definite requirement was put in place to cater to owners’ expectation to be ready to fly within relatively short notice.

30.  At paragraph 36 of Bellawings’ Closing Submissions, Mr Ngai argues that Mr Hunt did not give a standing instruction to all crew members to the effect that, from then on, every crew member would be on standby.  I am prepared to accept what Mr Hunt did was to reiterate to all crew members their obligations under paragraph 14.7 of OMA Rev 1 and alert them of the impending and corresponding change to be reflected in OMA Rev 2.  However, it is also clear that during the entire Employment Period, there was no system in place by which Bellawings would inform crew members of their rest days or days off.

31.  As stated at paragraph 14 above, Bellawings relies on the Alleged Understanding which it says can be gleaned from the Relevant Correspondence.  I find as a fact that there was no Alleged Understanding for the following reasons.

(1) From the documentary evidence adduced, Mr Breton first raised the issue of rest days in April 2016.  By his email dated 20 April 2016 to Mr Glen Reghenzani (“Mr Reghenzani”), the VP of Flight Operation, Mr Breton stated “I am concerned that the way Bellawings is utilizing my service is illegal…  When can we meet to discuss?” 

(2) Mr Reghenzani replied on the same day, stating “HK law is 7 days in a row.  1 day off 2 days in a row in 14.  Days off can be anywhere in the world.”

(3) Mr Reghenzani was aware that VPCEE was understaffed, which situation was causing difficulties and potential resignations on a regular basis.  On 3 May 2016, Mr Reghenzani emailed Mr Breton and Mr David Clacher (“Mr Clacher”).  Mr Clacher was at the time VPCEE’s 2^nd Captain.  Mr Reghenzani forwarded to Mr Breton and Mr Clacher (on a confidential basis) his proposals made to Windy Chan and Bliss Tai to deal with what he considered to be crewing issues of VPCEE, including additional hire or the regular use of outside contractors.

(4) Mr Breton was not satisfied with Mr Reghenzani’s reply.  On 29 June 2016 at 17:43 hrs, Mr Breton emailed Mr Jan Ciechanowicz (“Mr Ciechanowicz”),[7] the Director of Flight Operations.  After citing paragraph 7.8 of OMA Rev 2,[8] Mr Breton stated:

“I am taking for granted here than an actual day off (even though seems self explanatory) is one where crew members are on their own time and possibly unreachable by the company correct? Otherwise… this would seem like stand-by in my opinion.

I have never received since joining a year ago any email confirmation nor the likes from the company stating that I was actually “off”, whether abroad or in Hong Kong (other than annual leave of course) nor did I ever attempt to send them a statement on my part officially taking days off as per the above schedule.

Going back in retrospect on a previous month’s work and identifying non-flying days (but ready to go on short notice) as days off simply doesn’t cut it in my opinion. Do you agree?

This is a sensitive issue with our operation and look forward to your feedback in possibly implementing procedures which will garantee (sic) conformity with company rules and regulations.”

(5) There was no direct reply to Mr Breton’s email.  The reply which is relied on by Bellawings is an email sent by Mr Ciechanowicz to Mr Breton on the same day at 14:52 hrs (before Mr Breton’s email to Mr Ciechanowicz).  It dealt with a completely different topic, namely a Commander’s Discretion Report in relation to an incident on 29 April 2016 and Mr Breton was reminded that he had a duty to notify Bellawings if he was not getting adequate rest and/or feeling fatigued.  I do not accept Ms Choy’s evidence that Mr Breton appeared satisfied that Mr Ciechanowicz (earlier) email gave an adequate, or indeed was an, explanation to his query (sent chronologically later): paragraph 27 of Ms Choy’s statement.

(6) The matter was escalated further.  On 17 July 2016, Mr Breton sent an email to Mr Reghenzani, Mr Hunt and Mr Ciechanowicz, copying Mr Clacher and Mr John Macrae (“Mr Macrae”).  Mr Macrae was the First Officer of VPCEE.[9] In that email, Mr Breton raised the concern in relation to paragraph 7.8 of OMA Rev 2 again, only this time on behalf of himself and the flight crew.

(7) On 18 July 2016, Mr Ciechanowicz replied to Mr Breton.  He attached a spreadsheet which showed that Bellawings considered that all such days on which Mr Breton was not flying were classified as his rest days, with the additional classification that any single day off (a day between two days of flight duty) would be treated as a day of duty.[10]  Mr Ciechanowicz further pointed out that VPCEE was in maintenance for 2 weeks in June and July 2016 and did not fly for a week after that and such period all counted as Mr Breton’s days off.

(8) On 19 July 2016, Mr Breton acknowledged Mr Ciechanowicz’s reply and stated “Off my shoulders at least, tks for the prompt response Jan.” 

(9) I do not accept Ms Choy’s evidence that Mr Breton had accepted Mr Ciechanowicz’s explanation: paragraph 30 of Ms Choy’s statement.  As stated at paragraph 1.5 of OMA Rev 2, Mr Breton, as the Lead Captain, had both “flight” and “ground” duties, including monitoring aircraft maintenance.[11] The classification of non-flight days as rest days did not take into account of Mr Breton’s ground duties and Mr Ciechanowicz’s classification does not deal with the issue of standby.

(10) The lack of the Alleged Understanding is perhaps most clearly illustrated by the incident in late October 2016.  On 22 October 2016, Bellawings tried to contact Mr Breton to operate VPCEE.  As Mr Breton could not be contacted, Bellawings had to activate a contractor, Mr Nat Talarico (“Mr Talarico”).  In the evening of 22 October 2016, Mr Breton emailed Mr Reghenzani and explained that he was on his days off, having covered Mr Clacher for three weeks and Mr Macrae for ten days.

(11) Further, on 24 October 2016, Mr Breton compiled a written report for the incident pursuant to a request made by Mr Ciechanowicz.  Mr Breton stated “For the record, I was on a day off and not on duty.  Sorry and perhaps you clarify if I am misunderstanding but the company does not acknowledge a day off proactively and says we meet OM-A days off requirement based on “non-flying” days retroactively.”

(12) That incident led to a discussion within Bellawings to downgrade Mr Breton (by email dated 4 November 2016 from Mr Reghenzani to, inter alia, Mr Ciechanowicz).  Mr Reghenzani eventually informed Mr Breton by an email dated 8 December 2016 of Bellawing’s decision for him to relinquish his position to Mr Clacher and possible further action as the activation of Mr Talarico had cost Bellawings over US$14,000.

(13) In my view, the Relevant Correspondence plainly does not support the existence of the Alleged Agreement.

32.  Given the summary set out in the preceding paragraph, it is unsurprising that Mr Ngai does not seriously pursue the Alleged Agreement.

33.  To complete the picture, on 29 November 2016, a pilot meeting was held (not attended by Mr Breton).  One of the agenda items discussed was paragraph 14.8 of OMA Rev 2.  I note that paragraph 14.8 was discussed together with paragraph 6.1 of OMA Rev 2, which provides: “No crew member shall consume alcohol of any nature within 12 hours prior to reporting time.  At reporting time the alcohol from any alcoholic liquids previously consumed must have been dispersed.”  The minutes do not detail how the two timing requirements stipulated by paragraph 14.8 (report for duty within four hours) and paragraph 6.1 (no alcohol consumption 12 hours prior to reporting time) were to operate together in practice.

34.  Following Mr Breton’s departure, Bellawings had put in place a roster system.  The system entailed that a roster would be issued every month and the crew members would be told specifically the days on which they were on leave, standby or flight duty.  If a crew member was not rostered for a standby duty, there was no need for him or her to remain contactable on his or her work phone.

B3. The parties’ submissions on the rest day pay claims

35.  Mr Breton’s position is straightforward: on their proper construction, Clause 6 of the Employment Contract, paragraph 14.7 of OMA Rev 1 and/or paragraph 14.8 of OMA Rev 2 all equate being accessible on the company work phone with being on standby duty.  This construction is expressly stated in Clause 6 and derived by necessary implication from the wording of paragraph 14.7 of OMA Rev 1 (accessible unless on scheduled annual leave or DDO) and paragraph 14.8 of OMA Rev 2 (accessible unless on scheduled annual leave or resting).

36.  Mr Breton further relies on Leung Ka Kau & Ors v The Hospital Authority (2009) 12 HKCFAR 924.  Leung Ka Kau dealt with the issue of rest days in the context of doctors being required to be on-call.  An argument mounted by the Hospital Authority was that where a doctor rostered on-call was in fact not called upon to work, he was able to engage in his own activities on the relevant day without interruption and therefore suffered no loss.  At paragraphs 80-85 of Leung Ka Kau, the Court of Final Appeal was of the view that whether a doctor was or was not in fact required to treat a patient during an on-call day was beside the point and missing a rest day involved a real and substantial loss.  Mr Breton says that the same rationale applies in the present case.

37.  On the other hand, Mr Ngai submits that equating being accessible on work phone with standby duty creates a number of anomalies when paragraph 14.8 is read with other terms of OMA Rev 2.  His argument runs as follows.

(1) Under paragraphs 7.2 and 7.3.1, “Duty and Duty Period” is defined as any continuous period during which a crew member is required to carry out any task associated with the business of Bellawings and includes Flight Duty Period, Positioning, Ground Training, Ground Duties and Standby.

(2) If the construction of paragraph 14.8 is to the effect that the requirement to be contactable equates standby, then the phrase “must report for duty” is meaningless because the crew member is already on (standby) duty.

(3) Under paragraph 7.11, the maximum duty for flight crew shall not exceed 95 hours in any consecutive 14 days or 190 hours in any consecutive 28 days.  If the requirement to be contactable equates standby, and assuming 8 hours of sleep each day, the maximum duty hours in any consecutive 28 days would be exceeded in about 12 days.

(4) The construction equating being contactable with standby would also render paragraph 7.8 void.

(5) Under paragraph 7.1.5, there is a specific onus on crew members to comply with paragraph the Flight Time Limitation Scheme, including taking 8 days off in any consecutive 28-day cycle.  To construe paragraph 14.8 to mean a crew member is on standby when he is contactable would render Clause 7.1.5 meaningless in that it is impossible for a crew member to comply with the specific onus imposed upon him.

38.  Further, Mr Ngai seeks to reconcile the timing requirement prescribed under paragraphs 6.1 and 14.8 of OMA Rev 2[12] by submitting that paragraph 6.1 should have precedence over paragraph, namely that the requirement to report to duty under paragraph 14.8 is subject to the requirement that a crew member had not consumed alcohol within 12 hours prior to reporting time.

39.  Finally, it is Mr Ngai contention that as Mr Breton had no regular working hours and was required to work on demand, paragraph 14.8 was simply meant to provide an effective means to notify him when he was to work or report to duty.

40.  In addition to his contractual arguments, Mr Ngai further contends that Mr Breton’s evidence was incredible in a number of respects.  Relevant to the rest day pay claims, he submits that Mr Breton’s statement is internally inconsistent, in that Mr Breton has embellished his case on standby duty from one of merely being contactable (paragraph 17 of Mr Breton’s statement) to one of being constantly contacted (paragraph 21 of Mr Breton’s statement).  Another example is Mr Breton’s acceptance in cross examination that paragraph 22 of his statement is poorly worded.  Paragraph 22 of Mr Breton’s statement states that there was an agreement with Bellawings that the CAD Guideline was applicable.  In cross-examination, Mr Breton accepted that there was no such agreement but his expectation was that Bellawings would adopt the CAD Guideline.

B4. Analysis on liability in relation to the rest day pay claims

41.  I do not agree with Mr Ngai.

42.  On the issue of credibility, for the reasons set out below, despite the fact that I have reservations on the factual evidence given by Mr Breton in relation to his claim for wrongful termination, I do not regard the matters relied on by Mr Ngai to criticize Mr Breton’s credibility has any material bearing on the issues relevant to the rest day pay claims.  As noted at Section B2 above, the factual findings made therein are largely gleaned from the documentary evidence.

43.  Mr Ngai’s contractual argument is premised on an erroneous reading of the relevant terms, for the following reasons.

(1) Paragraph 14.8 of OMA Rev 2 equates being contactable with standby duty but with the proviso that it does not apply if a crew member is on annual leave or resting.

(2) Paragraph 7.1.6 of OMA Rev 2 states that schedules will be provided to show the details of flying duty periods, other duty periods and rest periods.

(3) One would have expected that the schedule provided under paragraph 7.1.6 of OMA Rev 2 would allow compliance with paragraphs 7.1.5, 7.8 and/or 7.11.  In any event, Mr Ngai’s analysis of paragraph 7.11 is incorrect, since Flight Crew is defined under paragraph 7.2 as those members of the crew of an aircraft who undertake to act as PIC[13] or co-pilot and Flight Duty Period as any time during which a person operates in an aircraft as a member of its crew.  Paragraph 7.11 clearly only encompasses flight duties, not ground duties and standby duty on the ground does not count towards the maximum (flight) duty hours.

(4) Although Duty and Duty Period includes standby, I do not accept that the words “must report for duty” in paragraph 14.8 is meaningless.  Factually, when a crew member is on standby and reports to work in response to Bellawings’ instructions, I have some difficulty in describing that process as anything other than reporting for duty.

44.  I also do not accept Mr Ngai’s suggestion that paragraph 6.1 should be given precedence over paragraph 14.8 of OMA Rev 2.  In my view, it is not necessary to give precedence to one over the other, had a proper schedule under paragraph 7.1.6 been issued.  The crew members would be free to consume alcohol during their scheduled rest days and would refrain from doing so if put on standby duty.  As explained by Ms Choy, this has been put in place since Mr Breton’s departure.  As canvassed above, paragraph 14.8 was promulgated to provide a more definite timing to meet owners’ expectation to be ready to fly on relatively short notice.  Mr Ngai’s suggestion would counterproductively create the situation that crew members would feel free to consume alcohol at any time, knowing that that would provide a valid excuse to not report for duty under paragraph 14.8. 

45.  I further do not believe that paragraph 14.8 of OMA Rev 2 should be treated as simply an effective means for Bellawings to notify crew members to report to duty.  It requires more, in that the crew member has to report to duty within 4 hours.  If a crew member is truly on a rest day, he should be entitled to abstain from working.  I note that Mr Ngai has not addressed Mr Breton’s reliance on Leung Ka Kau.

46.  For the above reasons, I find in favour of Mr Breton on the issue of liability in respect of the rest day pay claims. However, I agree with Mr Ngai that Mr Breton’s quantification is problematic, in that it does not take into account the effect of the annual leave taken by Mr Breton on how the 28-day cycles accumulate. 

B5. Calculation of rest day pay claims

47.  At the trial, Bellawings prepared a record of the annual leave taken by Mr Breton.[14] Mr Breton agrees that he made and was granted the following leave applications:-

(1) 21 December 2015 to 3 January 2016,

(2) 11 March to 16 March 2016,

(3) 26 July to 19 August 2016,

(4) 14 December to 30 December 2016.

48.  Mr Ngai has helpfully prepared the number of rest days taking into account the leave periods:-

(1) From 12 July 2015 to 20 December 2015, there were 162 work days or (5 x 28 work days) + 22 work days.  Pursuant to paragraph 7.8 of OMA Rev 2, there were 5 periods of 28 days (ie 5 x 8 rest days), 1 period of 14 days (ie 3 rest days) and 1 period of 7 days (ie 1 rest day).  The total number of rest days during this period is therefore 44 days. I note that Mr Ngai’s calculation of 44 days is in fact one day more than that claimed in the Statement of Claim for 2015 (43 days).

(2) From 4 January to 10 March 2016, there were 67 work days or (2 x 28 work days) + 11 work days.  The total number of rest days during this period is therefore 17 days.

(3) From 17 March to 25 July 2016, there were 131 work days or (4 x 28 work days) + 19 work days.  The total number of rest days during this period is therefore 35 days.

(4) From 20 August to 13 December 2016, there were 116 work days or (4 x 28 work days) + 4 work days.  The total number of rest days during this period is therefore 32 days. 

49.  Using Mr Ngai’s calculation, the total number of rest days is [44 + 17 + 35 + 32=] 128 rest days (“Base Rest Day Period”).  This is compared to 135 days claimed in the Statement of Claim. Mr Breton does not dispute Mr Ngai’s calculation.  I accept Mr Ngai’s calculation.

50.  Mr Ngai submits that Bellawing’s policy of requiring Mr Breton to turn on his work phone did not begin until the time when OMA Rev 2 came into effect on 19 February 2016.  I do not accept Mr Ngai’s submissions.  As stated at Section B2 above, OMA Rev 1 was already in place at the commencement of the Employment Period.  I do not see any justification to suggest that Mr Breton was not required to remain contactable when OMA Rev 1 was in place.

51.  From the Base Rest Day Period, Mr Ngai contends that a deduction should be made to 22 October 2016 and 8-13 December 2016, a total of 7 days.  As stated earlier, Mr Breton accepts that 3 days ought to be deducted.  As I understand it, Mr Breton accepts that he took one rest day on 22 October 2016 and two rest days prior to his last leave period which commenced on 14 December 2016 (as to which see further below). Conversely, it is Bellawing’s case that Mr Breton was not on rest days on 22 October 2016[15] and during the entire period of 8-13 December 2016 (as to which see further below).  I deduct three days from the Base Rest Day Period based on Mr Breton’s own concession.

52.  Mr Ngai only disputes the number of rest days.  He has no quarrel with the salary figures adopted in the Statement of Claim and I adopt them.[16]

53.  I assess Mr Breton’s rest day claims as follows:-

(1) For 2015: HK$159,838.70 x 12 / 365 x 43[17] = HK$225,963.75.

(2) For 2016: HK$165,000 x 12 / 365 x 81[18] = HK$439,397.26.

54.  Mr Breton’s claims for rest day pay are therefore assessed at HK$665,361.01.

C. Wrongful termination

55.  Clause 5(c) of the Employment Contract provides that Mr Breton’s employment with Bellawings may be terminated by either party giving to the other party not less than two months’ notice in writing or payment in lieu after the probation period.  There is no dispute that Mr Breton had completed the probation period.

56.  Clause 5(d) of the Employment Contract sets out seven grounds for summary dismissal.  However, in these proceedings, Bellawings has sought to justify its dismissal of Mr Breton on the grounds set out at section 9 of the Ordinance: paragraph 20 of the Defence. In opening, Mr Ngai contends that Mr Breton’s summary dismissal is justified on the following bases:-

(1) Mr Breton was absent from duty without valid reason;

(2) He wilfully disobeyed Bellawing’s lawful and reasonable order;

(3) He was dishonest about his whereabouts;

(4) He misconducted himself of numerous occasions.

57.  The first three grounds are all concerned with events which transpired from 8-13 December 2016.  Mr Breton’s pleaded case is that he was on his days off during the said period: paragraph 12 of the Reply.

58.  In relation to the fourth ground, the complaints are variously made by Mr Clacher, Ms Ashley Kwok (“Ms Kwok”), a flight attendant and Mr Macrae.  The complaints are set out in emails dated 14-15 December 2016 and are in respect of Mr Breton’s behaviour, including behaving insultingly and inappropriately (towards Ms Kwok) and being drunk in hotel lounges.  Bellawings also relies on an email dated 17 February 2017 from JW Marriott, Beijing complaining of Mr Breton’s drunken behaviour on an unspecified occasion.

59.  I believe I can deal with the fourth ground swiftly.  As stated earlier, only Ms Choy gave evidence on behalf of Bellawings.  In her witness statement, she did not proffer any evidence as to whether Bellawings had carried out any investigation into the fourth ground, especially when the complaints from Mr Clacher, Ms Kwok and JW Marriott were couched in general terms.  Mr Clacher and Mr Macrae are still employed by Bellawings and there is no explanation as to why they were not tendered as a witnesses.  Although Ms Choy has left Bellawings, there is no explanation as to whether any effort was made to secure her attendance at the trial.  JW Marriot’s email specifically offered to provide more details and none was sought by Bellawings.  I am not satisfied that Bellawings can justify Mr Breton’s summary dismissal by reason of the fourth ground.

C1. Relevant events

60.  The facts set out in this Section C1 are either not in dispute, or are the result of my findings of fact.  In contrast to the rest day pay claims, the factual finding exercise in respect of the wrongful termination claim is more dependent on the issue of credibility.  Mr Ngai has invited to bear the established principles in mind by reference to Chang King To v Wong Chuen Yuk [2019[ HKCFI 2597 at paragraph 21 and Law Sau Wah v Lau Chu Mui [2019] HKCFI 2519 at paragraph 24.

61.  On 12 July 2016, Mr Breton submitted an application for reimbursement for the air tickets which he had purchased for himself and his wife for their Christmas trip back to Canada.  Mr Breton had booked a flight to depart from Hong Kong on 8 December, returning on 30 December 2016.  The application for reimbursement was approved by Bellawings, pursuant to Claus 25(c) of the Employment Contract.

62.  On 12 September 2016, there were email exchanges between Mr Breton and Ms Choy.  Me Breton was told that he could not “borrow” annual leave entitlement from a subsequent year.  Eventually, on 13 September 2016, Mr Breton submitted his leave application for the period from 14-30 December 2016.  The application was approved.

63.  Mr Breton was on flying duty in late November 2016.  VPCEE had flown to Maldives on 29 November 2016.  On 29 November 2016, Mr Linus Koo (“Mr Koo”), an engineer at Bellawings, emailed Mr Breton asking when VPCEE was due to return to Hong Kong, as it was intended that maintenance would be carried out by an outside company called Metrojet on 5 December 2016.  Mr Breton replied that VPCEE was scheduled to return on 4 December 2016 which it duly did.

64.  On 1 December 2016, Mr Koo emailed Mr Breton to ask whether a test flight could be arranged for 9 or 10 December 2016.  Mr Breton replied that Mr Macrae and Mr Clacher “will be covering starting Dec 9”.  It does not appear that Mr Breton’s reply was copied to either Mr Macrae or Mr Clacher.

65.  There were emails exchanged between Mr Koo and Mr Breton on 7 December 2016 regarding certain maintenance issues.  Again, it does not appear that these exchanges were copied to anyone else.

66.  There is no dispute that Mr Breton was asked to deal with the maintenance work on 8 December 2016: paragraph 12.4 of the Reply.  Mr Breton did not do so.  Mr Reghenzani’s email to Mr Breton dated 8 December 2016 states: “Due to you abandoning your position as Lead Captain on VP-CEE in not answering your phone, you will need to relinquish your position as Lead Captain on VP-CEE.”  The email also refers back to the earlier incident on 22 October 2016 when Mr Talarico had to be activated as Mr Breton could not be contacted.

67.  Mr Breton’s reply was simply “Email received”.  Whilst it is Mr Breton’s pleaded case and his evidence that he was on as days off from 8-13 December 2016, it is puzzling why that position was not articulated by Mr Breton contemporaneous and in writing in the face of a demotion.

68.  Mr Clacher was promoted to Lead Captain in Mr Breton’s stead.  On 9 December 2016 at 7 pm, Mr Clacher emailed Mr Breton asking for his whereabouts: “As of now I am lead Ca I need to know if you in HK?  And if not I need to know, before it was not my business where you were.” Mr Breton only replied 16 hours later, on 10 December 2016 at 11:27 am, stating that “Not physically in my apartment no, well within range.”  Mr Breton again did not state that he was on his days off.  As stated earlier, Mr Breton had told Mr Koo that Mr Clacher “[would] be covering starting Dec 9”.  The fact that Mr Clacher had to ask for Mr Breton’s whereabouts is inconsistent with the suggestion that Mr Breton had made the necessary arrangements for Mr Clacher to take over from 9 December 2016. 

69.  On 11 December 2016, Mr Hunt emailed Mr Breton, stating “We have been trying to contact you for the last 3 days, but your phone diverts to your voicemail. Can you please give me a call as you as you get this.”

70.  Instead of calling Mr Hunt, Mr Breton sent him an email.  Mr Breton stated that he “had been within the required 4hrs from hk”.  In relation to his annual leave, Mr Breton also stated that “it is or at least was customary to be off rotation or not actively covering 2 days prior to annual leave.”  Not only did Mr Breton not state that he was on his days off, Mr Breton sought to justify that he was in compliance with paragraph 14.8 of OMA Rev 2 in being able to report for duty within four hours.  When cross-examined, Mr Breton stated that he might have been in Macau.

71.  The “customary” two days (along with another rest day on 22 October 2016) are, as I understand it, part of the three days reduced by Mr Breton in his closing submissions from the entitlement claimed in the Statement of Claim.

72.  On 12 December 2016, a number of emails were exchanged between Mr Reghenzani and Mr Breton.

73.  In Mr Reghenzani’s first email, it is stated:-

“You have not been contactable for the past 4 days. Your crew require the spare key to the aircraft. You aircraft required maintenance since your return from Male. Have you organized ongoing responsibilities for your absence as a member of the crew or have you walked away from your duties as a crew member of this aircraft?...

The Chief Pilot has requested you to come to the office today and yet you never came…

Following numerous calls, we will not send you a Whatsapp message, WeChat message and a Skype Message to get you the opportunity to rebuke anything that you feel is not accurate in our assessment of you abandoning your duties.”

74.  Mr Breton replied by email stating:-

“… Sorry mate I have been involved with mcc [maintenance] as well as staying active with my crew throughout… whatsapp msgs incoming as I write, why don’t you ask around first.  To keep on saying you “have not been reachable” for days is outright not true and disconcerning [sic] at best.  Seems like the company is on a witch hunt to me!

We have operated like this since joining my key with me, one with David and John said he didn’t see a need to carry one as there is always one in the APU panel.  So it negs the question, why this overwhelming urgent need for a key that is neither required or needed…

Have been up front in mentioning I was not presently in Hong Kong and getting ready to go to Canada on annual leave…”

75.  Mr Reghenzani in a further email stated:-

“The Lead Capt sent you an email following no contact with you at 7 pm on the 9^th of December.

You answered by email 16 hours later with “Not physically in my apartment no, well within range” You had already abandoned your employment more than 5 days before your annual leave. Please read your contract.

You say that you are not in HK or do I follow your second statement that you are getting ready to go on leave…

At no time have you requested to leave HK early.  Your fellow crew Members are facing 3 weeks over the festive season covering your duties…”

76.  Mr Reghenzani in another email stated:-

“We will be at your place tomorrow.

Please hand over the keys and phone that is not operational.”

77.  On 13 December 2016, Mr Ciechanowicz sent an email to Mr Breton in the following terms:-

“As you will commence Annual Leave starting tomorrow 14^th December, we require you to come to our offices today to discuss the handover of your aircraft to David Clacher.”

78.  Mr Breton did not reply to Mr Ciechanowicz and did not attend the meeting.

79.  Instead, on 13 December 2016 Mr Breton gave a reply to Mr Reghenzani:-

“Please… you continuing to harass me with your false accusations is not helping the situation. You have yet to hear/see for yourself the evidence I will bring forward shortly…

This is my last correspondence until I come back from AL…”

80.  Eventually, Mr Breton returned from Canada at the end of December 2016.  He attended a meeting with Mr Ciechanowicz and Ms Choy on 31 December 2016.  When cross-examined by Mr Ngai, Mr Breton stated that did not give a reason for his absence from 8-13 December 2016.  He was summarily dismissed at the meeting.  The reason given in the Termination Letter is that Mr Breton was terminated due to his absence of duty without a valid reason and unauthorized leave.

C2. Analysis

81.  In my view, Bellawings was justified to summarily dismiss Mr Breton for the reasons stated in the Termination Letter. I am not convinced that Bellawings have persuaded that it has made out its case on dishonesty.  Mr Ngai’s says that Mr Breton was dishonest with regard to his whereabouts.  It seems to me that whilst Mr Breton’s answers may legitimately be criticized for being cryptic, I do not believe they fell within the realm of being dishonest. 

82.  I do not accept Mr Breton’s evidence that he was entitled to be absent from work from 8-13 December 2016 because he was taking his rest days.  To the contrary, even up until 12 December 2016, he was still asserting that he was “within range”, “within 4 hours from Hong Kong” and was still involved in the maintenance of VPCEE.  However, no documentary evidence was adduced by Mr Breton to support the contention that he did remain involved in the maintenance work after 7 December 2016.  The documentary evidence generated after 7 December 2016 was predominantly, if not exclusively, concerned with Bellawings’ complaints against Mr Breton and Mr Breton’s explanations.

83.  I also do not accept that Mr Breton was entitled to be absent from work on the basis that it was customary to be “off rotation or not actively covering 2 days prior to annual leave.”  As stated above, Mr Breton took annual leave from 11-16 March 2016.  According to a Crewmember Activity Summary, he was on flying duty on 6-10 March 2016.  The foregoing plainly contradicts Mr Breton’s assertion that there existed such a custom.

84.  I do not regard that there was any reason for Mr Breton to not respond to Mr Ciechanowicz and to not attend the meeting requested of him on 13 December 2016.

85.  I further have reservation about whether Mr Breton had made the necessary arrangement to handover VPCEE to Mr Clacher and Mr Macrae before he absented himself for work.

86.  Mr Breton submits that Bellawings summarily dismissed him because of his insistence on his rest day rights.  I do not believe that this is made out on the facts.  As stated above, throughout the period from 8-13 December 2016, Mr Breton never asserted that he was absent from work because of his rest day entitlements.

D. Conclusion

87.  For the above reasons, I enter judgment in respect of Mr Breton’s rest day pay claims in the total sum of HK$665,361.01 with interest thereon at the prevailing judgment rate from 24 April 2017, which was the date on which Mr Breton filed his claim in the Labour Tribunal until payment.[19] I dismiss Mr Breton’s claim for payment in lieu of notice. 

88.  I also make a costs order nisi that Bellawings do pay to Mr Breton 70% of the costs of the action to be taxed if not agreed, on the basis that Bellawings was successful in demonstrating that it was entitled to summarily dismiss Mr Breton.