In Breton Jean v 香港丽翔公务航空有限公司 (HK Bellawings Jet Limited) [2022] HKCA 1736, the Court of Appeal (CA) upheld the District Court (DC) decision in allowing the employee's claim for unpaid and untaken statutory rest days, since days required to be on standby should not be regarded as “rest day” or “day off”. 

See our earlier Legal Update for the case background and details of the DC judgment here

CA's Decision 

The CA appeal only concerned the DC's decision in upholding the employee's claim for unpaid and untaken rest days. 

The employer argued, among other things, that the DC judge was wrong to adopt the notion and related principles of statutory "rest days" under section 2 of the Employment Ordinance (Cap 57) (EO) in construing the meanings "days off" and "standby" within the context of the employee's employment contract (Contract). 

The CA disagreed, holding that while the expression “day off” in the Contract does not necessarily have to bear the same meaning as “rest day” in the EO, the meaning of “rest day” in the EO is clearly relevant to the proper meaning that should be given to “day off” in the Contract.

The CA considered that in the absence of any clear indication to the contrary, the view could be taken that the parties intended the two concepts to bear the same meaning, to ensure consistency and coherence of their rights and obligations under the Contract and EO. 

The CA held that the DC judge did not simply apply the statutory definition of “rest day” in the EO to construe the expression “day off” in the Contract. He also took into account other provisions of the Contract, as well as the factual matrix in the construction exercise. 

The CA considered the DC judge was correct to rely on the statutory definition of “rest day” in the EO as an aid to the proper construction of the expression “day off” in the Contract.

Lessons for Employers

An employee under a continuous contract is entitled to not less than one statutory rest day in every period of seven days. Employers should ensure that employees on statutory rest days are able to abstain from working. If an employer intends to provide a contractual day off in addition to the statutory rest day, they should clearly identify that contractual day off – and how that day is to be treated (e.g., whether it is paid) in the contract of employment. 

See “Lessons for Employers” in our earlier Legal Update here.

The judgment is available at the following link:

https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=149015&QS=%28breton%2Bjean%29&TP=JU