Hong Kong Court of Appeal confirms ‘standby time’ not ‘rest day’

One of the central issues concerned what constitutes "days off" for an employee. The plaintiff argued that whenever he was placed on "standby duty," during which he was required to turn on his mobile phone and be ready to report for duty on short notice, he should not be regarded as having a "day off." During the entirety of his employment period, the plaintiff was either on flight duty or standby duty, except when he was on annual leave. When he was on standby duty, he was required to be accessible via his work phone.

The defendant argued that there was an understanding between the parties that all days on which the plaintiff was not flying and was resting at home or at another location were considered by the parties to be "off days" or "rest days." Furthermore, even if being contactable could be equated with being on standby, the plaintiff was not "on duty" for merely being on standby but could only be regarded as such if he were called upon to actually provide services. In particular, the defendant did not have any system in place by which it would inform crew members of their rest days or days off.

Industry guidelines noted by court

The court noted that relevant industry guidelines provided helpful background for the purpose of construing the plaintiff’s employment contract, and that the defendant did not draw a distinction between a "rest day" and a "day off." The court was therefore required to examine section 2 of the Employment Ordinance, which provides a definition of "rest day" being "a continuous period of not less than 24 hours during which an employee is entitled to abstain from working for his employer."

Following trial on 22 January 2021, the District Court found in favour of the plaintiff in respect of the rest day issue. The court accepted the plaintiff’s position that his "standby" days were not "rest days," and therefore awarded the plaintiff HK$665,361.01.

The defendant appealed. The Court of Appeal dismissed the appeal and found that:

• The nature of the "standby" period (i.e. ready to answer phone calls and report to work) constitutes "standby duty." as defined under clause 6 of the plaintiff’s employment contract and that such periods constituted "duty period."
• The meaning of "day off" only applies when "reckoning" a "day off," but "does not explain" what constitutes a "day off." And "as a matter of ordinary language," having a "day off" and being on "duty period" are mutually exclusive – thus, when the plaintiff is on a "duty period," he cannot have that same day as a "day off."
• The above interpretation is consistent with the definition of "rest day" as defined in the Employment Ordinance. It is noted that this is analogous to the case of Leung Ka Lau v. Hospital Authority, (1 March 2006), HCA 1924/2922, in which doctors on call were also held to be not on a "rest day."

The dispute arose in this case largely because the defendant did not provide a schedule or roster showing details of flying duty periods, other duty periods and rest periods, which resulted in the plaintiff being constantly put on standby, except when he was on flight duty or annual leave. After the plaintiff was dismissed, the defendant started to implement a roster system.

Failure to grant at least one rest day in every period of seven days is an offence. Employees should not be directed to work or be required to be on standby duty during their rest days. A rest day cannot be properly regarded as such if any requirements or restrictions have been placed on the employee to do something, such as making themselves available or being contactable, or to refrain from doing something (in the case of pilots, such as the consumption of alcohol). Employers are therefore reminded to properly schedule staff rotations and to ensure they comply with the statutory requirement to grant rest days.

Richard Keady is a partner and Jenny Zhuang is Of Counsel, both in Dentons’ Litigation and Dispute Resolution Group based in Hong Kong.