BRETON JEAN v. HK BELLAWAYS JET LTD

DCCJ 3612/2017

[2022] HKDC 173

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3612 OF 2017

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DECISION

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Introduction

1.  Before the court is the defendant’s application for leave to appeal against my judgment handed down on 22 January 2021 (“Judgment”).  Unless otherwise stated, this decision adopts the terms defined in the Judgment.

2.  Mr Breton commenced these proceedings to recover from Bellawings, his former employer (1) payments for unpaid and untaken rest days (“1^st Claim”) and (2) wages in lieu of notice (“2^nd Claim”).

3.  By the Judgment, I found against Mr Breton on the 2^nd Claim, on the basis that Bellawings was justified to summarily dismiss him: Judgment Section C.  There is no appeal against this part of the Judgment.

4.  On the other hand, I allowed the 1^st Claim and quantified Mr Breton’s entitlement at HK$665,361.01: Judgment Section B.  This forms the subject matter of Bellawings’ present application for leave to appeal.

5.  At the trial, Mr Breton acted in person and Bellawings was represented by Mr Lawrence Ngai of counsel.  As regards the present application, Mr Benny Lo (together with Mr Victor Chan) appeared for Bellawings and Mr Christopher To (together with Mr Alan Tang) for Mr Breton.

The 1^st Claim

6.  I do no propose to rehearse in detail my reasons for allowing the 1^st Claim.  The following summary is hopefully sufficient to enable a proper understanding of the arguments ventilated at the present application.

7.  At Judgment §§12-16, I summarized the parties’ rival contentions in respect of the 1^st Claim.  Mr Breton’s case was that during the entirety of the Employment Period, he was either on flight duty or standby duty except such time when he was on annual leave.  When he was on standby duty, he was required to be accessible by the work phone provided by Bellawings.  In contrast, Bellawings contended that the Alleged Understanding between the parties was 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”.  As identified at Bellawings’ Opening Submissions §11(b) and recorded at Judgment §16, the crucial issue to be determined at the trial was 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 (“Core Issue”).

8.  At Judgment §§17-24, I outlined what I considered to be the relevant contractual and statutory framework.  The various provisions cited at Judgment §§18-19 were the ones which I considered to be particularly relevant from Mr Breton’s pleaded case.  I also formed the view that the CAD Guidelines at least constituted available background for the purpose of construing the Employment Contract.  I also noted that Bellawings case did not draw a distinction between a “rest day” and a “day off”[1] and came to the view that I was entitled to take into account section 2 of the Employment Ordinance Cap 57 (“Ordinance”) which provides a definition of “rest day”.

9.  I made a number of factual findings at Judgment §§25-34.  I specifically rejected the defendant’s case on the existence of the Alleged Understanding.  I accepted 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, 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 and that there was a problem of understaffing on the part of Bellawings.  I also found that following Mr Breton’s departure, Bellawings had put in place a roster system which 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 standby duty, there was no need for him or her to remain contactable on his or her work phone.  There is no appeal against the foregoing findings.

10.  I set out the parties’ submissions on the 1^st Claim at Judgment §§35-40 and rejected Bellawings contentions at Judgment §§41-46.  I accepted Mr Breton’s position on the Core Issue at Judgment §35 as the relevant contractual terms all equated being accessible on the company work phone with being on standby duty.  I rejected Mr Ngai’s submissions that equating being contactable with standby duty would create a number of anomalies.  It is pertinent to note that at Judgment §45 I formed the view that if a crew member was truly on a rest day, he should be entitled to abstain from working.[2] I determined the issue of liability in Mr Breton’s favour and quantified Mr Breton’s entitlement at Judgment §§49-54.

The present application

11.  Four draft grounds of appeal were set out in Bellawings’ summons dated 19 February 2021 for leave to appeal.  However, in his written material, Mr Lo instead advanced the following three “perfected” grounds of appeal.

(1)  I erred in adopting the notion and related principles of “rest day” under section 2 of the Ordinance when Mr Breton’s pleaded claim against Bellawings for the latter’s failure to provide him with “days off” placed no reliance upon any breach of the Ordinance at all (“Ground 1”).

(2)  Further or alternatively, I failed to properly construe the meanings of “day off” and “standby” within the context of Chapter 7 of OMA Rev 2 and thus erred in concluding that Mr Breton was not provided with the “days off” as per §7.8 of OMA Rev 2 (“Ground 2”).

(3)  Further or alternatively, I erred in finding Bellawings liable for the 1^st Claim and hence erred in awarding damages to Mr Breton, when Mr Breton did not prove on the balance of probabilities that he had not been given “days off” by the Defendant (“Ground 3”).

12.  Mr To did not raise any objection against Bellawings’ departure from the draft grounds of appeal and the application proceeded on the basis of the three perfected grounds of appeal.

13.  The parties further agreed that the principles applicable are those set out in SMSE v KL [2009] 4 HKLRD 125 §17, namely that the court needs to be satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard before granting leave.  Bellawings’ application is only premised on the first limb.  In this regard, reasonable prospects of success involves the notion that the prospects of success must be more than fanciful, without having to be probable.

14.  I propose to deal with Grounds 2, 1 and 3 in that order.  Ground 2 is an all-encompassing ground on what Bellawings contends to be the proper construction of the terms “day off” and “stand by” and should logically be dealt with first.

Ground 2

15.  Mr Lo acknowledged that Ground 2 was not a point run at the trial. However, Mr To accepted that it is a point a law and may be pursued on appeal: Flywin Company Limited v Strong & Associates Limited (2002) 5 HKCFAR 356 at §38. 

16.  Contrary to the position taken at the trial, it is now Mr Lo’s case that a determination of the Core Issue is not sufficient.  Mr Lo says that even if being contactable could be equated with being on standby, Mr Breton was not on duty for merely being on standby but was on duty only if he was called upon to actually provide services.  Mr Lo sought to justify this position by two avenues, namely:-

(1)  as a matter of construction of §7.2 of OMA Rev 2; and

(2)  by reference to a number of authorities in support of the proposition that when an employee has to be contactable during standby or on-call period but he is not required to be at home or at a place designated by the employer, only the time when he is called upon to actually provide services is regarded as working time.

17.  The general principles on contractual interpretation have been set out in a number of cases, for example the recent case of Achieve Goal Holdings Limited v Zhong Xin Ore-Material Holding Company Limited [2020] HKCA 51 at §16.  Relevantly:-

(1)  the construction of a contract is an attempt to discover what a reasonable person would have understood the parties to have mean;

(2)  this is done by identifying the meaning of the relevant words, (a) in light of the natural and ordinary meaning of those words, the overall purpose of the contract, any other provisions of the contract, the facts known or assumed by the parties at the time at the time the contract was made, and common sense, but (b) ignoring subjective evidence of any party’s intentions;

(3)  the background knowledge which would reasonably have been available to both parties in the situation in which they were at the time of the contract includes anything which would have affected the way in which the language of the document would have been understood by a reasonable man;

(4)  interpretation is a unitary exercise and where there are rival meanings, the court can give weight to the implications of rival constructions by reaching a view as to which construction is more consistent with business common sense;

(5)  but in striking a balance between the indications given by the language and the implications of the competing constructions, the court must consider the quality of drafting of the clause (the poorer the quality of the drafting, the less willing the court should be to be driven by semantic niceties to attribute to the parties an improbable and unbusinesslike intention), and it must be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest;

(6)  where the disputed provision is open to two possible interpretations, the unitary exercise involves an iterative process, by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated;

(7)  in construing a contract, all parts of it must be given effect where possible, and no part of it should be treated as inoperative or surplus. 

18.  I set out below what I consider to be the relevant provisions.[3]

(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)  OMA Rev 2 §6.1 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.”

(3)  OMA Rev 2 §7.1.6 provides:-

“Schedules will be provided to show the details of flying duty periods, other duty periods and rest periods.”

(4)  OMA Rev 2 §7.2 provides the following definitions:-

“Duty and Duty Period”: Any continuous period during which a crew member is required to carry out any task associated with the business of [Bellawings]. It includes any Flight Duty Period, Positioning, Ground Training, Ground Duties and Standby.

“Day Off”: A single day off is a period of 24 hours starting at 00001 local time. A rest period may be included as part of a day off.

“Rest”: The word rest shall be taken as meaning repose or sleep.

“Rest Period”: A period of time before starting a FDP which is designed to give crew members adequate opportunity to rest before a flight.

(5)  OMA Rev 2 §7.3.1 provides:-

“Duty Period

Any continuous period during which a crew member is required to carry out any task associated with the business of [Bellawings].  It includes any Flight Duty Period, Positioning, Ground Training, Ground Duties and Standby.”

(6)  OMA Rev 2 §7.8 provides:-

“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.”

(7)  OMA Rev 1 §14.7 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,[4] 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).”

(8)  OMA Rev 2 §14.8 provides[5]:-

“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.  Mr Lo submitted that there is no specific definition in OMA Rev 2 as to what “day off” and “standby” mean.  As noted by Mr Lo, while OMA Rev 2 §7.2 supplies a definition for the term “day off”, it only stipulates how a “day off” is to be counted but without a substantive meaning on what actually constitutes a “day off”.

20.  Mr Lo relied heavily on the first sentence of the definition of “Duty and Duty Period”, namely that in order to qualify as being on duty, a crew member was required to carry out any task associated with Bellawings’ business.  Mr Lo reasoned that the first sentence would properly inform the interpretation of the various examples given in the second sentence, including the situation of “standby”.  Thus read, Mr Lo submitted that the term “standby” in the second sentence was intended to only refer to situations where a crew member was required to actually carry out any task associated with Bellawings’ business, but not when he or she was merely on standby (ie without actually being required to “carry out any task” at all).

21.  I have reservations about the correctness of the new argument advanced by way of Ground 2, for the following reasons.

22.  First, as Mr To submitted, the construction now advanced by Mr Lo is a strained one.  Although Mr To put the point in a number of different ways, the nub of his submission may be distilled into the following propositions.  On its plain reading, the definition of “Duty and Duty Period” means that each of the examples in the second sentence was itself a task associated with the Bellawings’ business.  Were Mr Lo’s construction correct, it would render the reference to Standby otiose, as the actual task carried out by a crew member would likely fall under one of the previous examples of Flight Duty Period, Positioning, Ground Training and Ground Duties.  

23.  Secondly, Mr Lo’s submissions have only honed in on OMA Rev 2 §7.2.  As set out at Judgment §§35 and 43, there are other provisions in the contractual arrangement between the parties which are of the effect that being contactable would be equated on standby duty, with the proviso that such standby obligation did not apply if a crew member was on leave or DDO[6] (OMA Rev 1 §14.7) or resting (OMA Rev 2 §14.8).  The presence of these provisions does not sit well with Mr Lo’s contention that despite being on standby, Mr Breton was nevertheless on a “day off”.

24.  Thirdly, Mr Lo’s construction does not resolve the problem identified at Judgment §§38 and 44, namely the difficulty in reconciling the time requirements prescribed under OMA Rev 2 §§6.1 (no alcohol consumption within 12 hours prior to reporting time) and 14.8 (report to duty when called upon within 4 hours).  Indeed, in his oral submissions, Mr Lo accepted that his construction would likely lead to the situation that a crew member who had consumed alcohol during a “day off” not being able to report to duty when “called out” from standby duty.  This would be against the very purpose of promulgating OMA Rev 2 §14.8: Judgment §44.

25.  Fourthly, as stated at Judgment §21, the CAD Guideline was a relevant factual matrix which I could take into account when construing the Employment Contract. 

(1) CAD Guidelines §29.9.3 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…”

(2) In fact, CAD Guidelines §7.7 contains an identical definition of “Duty and Duty Period” as that in OMA Rev 2 §§7.2 and 7.3.1, namely:-

“Any continuous period during which a crew member is required to carry out any task associated with the business of an aircraft operator.  It includes any flight duty period, positioning, ground training, ground duties and standby.”

(3) CAD Guidelines §7.30 defines “Standby Duty” as

“A period during which an operator places constraints on a crew member who would otherwise be off duty.”

(4) CAD Guidelines §29.9.6 provides that standby duty would account towards the cumulative totals of duty hours:-

“Duty hours shall be added to cumulative totals in accordance with the following:

To count in full:

29.9.6.1 All duty periods except as specified below.

To count as half the time on duty:

29.9.6.2 The standby duty when undertaken at home, or in suitable accommodation provided by the operator, takes place during the period of 2200 to 0800 hours, and the crew member can take undisturbed rest and is not called out for duty.”

26.  It appears to me that a reasonable construct in the position of the parties with the knowledge of the background information set out above would not have understood OMA Rev 2 §7.2 in the manner contended for by Mr Lo.

27.  Fifthly, as set out at Judgment §§43(2) and (3), the dispute between the parties was in large caused by Bellawings’ failure to issue a schedule to show the details of flying duty periods, other duty periods and rest periods as required under OMA Rev 2 §7.1.6, which resulted in Mr Breton being constantly put on standby except when he was on flight duty or annual leave.  This was done after following Mr Breton’s departure.  It is incorrect for Mr Lo to relegate the foregoing as inadmissible subsequent conduct for the purpose of contractual interpretation, as OMA Rev 2 §7.1.6 (which was not revised compared with OMA Rev 1) was always part of the terms of the agreement between the parties.

28.  Despite my reservation on the correctness of Mr Lo’s construction arguments, I am cognizant that the “reasonable prospect of success” threshold is not high and it is arguable that Mr Lo’s construction of “duty and duty period” and “day off” may have merits which are more than fanciful: T v W [2021] HKCFI 160 §9.

29.  Moreover, Mr Lo relies on Sindicato de Medicos de Asistencia Ptilica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2001] ICR 116 which was applied at Leung Ka Lau v The Hospital Authority, CACV 57 of 2007, 21 January 2008 §66-68 and §§99-101.[7]  They are authorities for the proposition that, in the context of the medical profession, a doctor is not “at work” or “working” simply by virtue of being on call outside the hospital, and only time linked to the actual provision of primary care services would be regarded as working time.

30.  I have some hesitation on the relevance of the additional cases relied on by Mr Lo, as none of them was concerned, in contrast with the present case, with the construction of an agreement.  However, I am again not prepared to conclude that Mr Lo’s reliance on these cases does not meet the requisite merit threshold.

31.  For the reasons set out in this section 4, I am prepared to grant leave to appeal in respect of Ground 2.

Grounds 1 and 3

32.  Unlike Ground 2 which was not run at the trial, I intend to only deal with Grounds 1 and 3 briefly.

33.  The nub of Ground 1 is that I should not have been considered the notion of rest day under section 2 of the Ordinance in determining the 1^st Claim as Mr Breton’s pleaded claim against Bellawings for the latter’s failure to provide him with “days off” placed no reliance upon any breach of the Ordinance.  As noted at §2.3 above and Judgment §45, no distinction was made by Bellawings at the trial between “rest day” and “day off”.  Where, as here, clause 24 of the Employment Contract provides that it shall be governed by and construed in all respects in accordance with the laws of Hong Kong, I do not believe that it was unwarranted for me to take into account Leung Ka Lau & ORs v The Hospital Authority (2009) 12 HKCFAR 924 at Judgment §36.  As noted at Judgment §45, Bellawings’ former counsel did not address Mr Breton’s reliance on Leung Ka Lau (CFA), which reliance was raised in Mr Breton’s Opening and Closing Submissions.

34.  Further, Mr Lo’s submissons, were they correct, would give rise to the situation where a crew member would have had a “day off” but be stilled entitled to a “rest day” under the Ordinance.

35.  However, as I have given leave to appeal in respect of Ground 2 which encompasses the whole issue of construction of “day off”, it seems to me that it should follow that I should grant leave on Ground 1 as well.

36.  Ground 3 is dependent upon Ground 2.  It therefore follows also that I should grant leave in respect of Ground 3.

Conclusion

37.  For the above reasons, I grant Bellawings leave to appeal in respect of Grounds 1 to 3 as annexed to Bellawings’ Submissions dated 9 April 2021.

38.  I also make a costs order nisi that costs be in the cause of the appeal with a certificate for one counsel.

39.  Last but not least, I am grateful to all counsel for the assistance rendered.