Member Article

In the case of Leung Ka Lau & Ors v The Hospital Authority [2006] HKEC 399, doctors working in public hospitals successfully claimed compensation in the Court of First Instance for "rest days" and "holidays" for which they had been deprived but lost their claim on compensation for "overtime" worked (Please refer to our newsletter issue 2006.2).

The Court of Appeal upheld the Court of First Instance's dismissal of the overtime claims and its ruling regarding liability on the rest day and holiday claims. However, the Court of Appeal varied the Court of First Instance's order as to how damages should be assessed holding that a doctor "on non-resident call on a rest day or statutory/public holiday but not called upon to provide patient treat that day" should only receive nominal damages.

The Hospital Authority ("HA") and the doctors both appealed the rulings of the Court of Appeal to the Court of Final Appeal.

Court of Final Appeal

The main issues before the Court of Final Appeal were laid out under the following heads:

(a) Overtime

The Court of Final Appeal held that there is nothing in the Human Resources Policy Manual, the Human Resources Administration Manual or the HA's rules and regulations to displace the position evident in the letters of appointment which took effect as the prevailing contractual document. The letters of appointment make it clear that the doctors are expected to work overtime and to perform on call duties. There is no suggestion that the doctors are to be recompensed by reference to hours worked beyond normal office hours. Instead, the letters all require the doctors to devote their time according to the exigencies of their work and the operational requirements of each specialty. The Court therefore dismissed the overtime claims.

(b) Nominal damages

The Court of Final Appeal pointed out that a "rest day" under the Employment Ordinance means a continuous period of not less than 24 hours during which an employee is entitled to abstain from working for his employer. However, when a doctor is on non-resident call, though he is away from the hospital, he must remain within 30 minutes of the hospital; he must not drink alcohol; and he must remain mentally ready to respond to calls for his services. Therefore when a doctor is on non-resident call, he is required to provide patient treat should the need arise, and he is NOT entitled to abstain from working from the HA. The Court concluded that a day rostered on non-resident call could not qualify as a rest day under the Ordinance.

The Court of Final Appeal was of the view that the doctor's loss in such a case was the loss of a rest day. The fact that he might or might not actually have been required to treat any patient during that non-resident call is beside the point. Missing a rest day involves a real and substantial loss, and the award of nominal damages by the Court of Appeal was quite inappropriate. The Court of Final Appeal ruled that a practical measure of damages acceptable to the doctors would be payment of the equivalent of a full day's wages (at the doctor's then applicable salary) where a rest day has been missed and cannot practicably be replaced by an alternative day off.

(c) Entire day

The Court of Final Appeal was of the view that doctors are entitled to compensation for loss of a whole day even if they are on non-resident call without being required to provide any patient treatment on the day in question. The doctors' loss is the deprivation of a rest day. The Court held that whether or not the doctors are required to provide their services and for how long in the course of the day spent on call is not relevant. The doctors are entitled to damages designed to compensate them for the entire rest day which they should have been, but were not, granted.

(d) Holiday compensation

The Court of Final Appeal considered that the legal consequences of rostering a doctor on call are the same whether such rostering falls on a statutory holiday or on what ought to be a rest day. As with rest days, the Court concluded that a doctor who is on call during a statutory or public holiday is thereby deprived of that holiday and such breach on the part of HA sounded in substantial damages equivalent to a full day's wages and not merely in nominal damages.

Comparison with the case of Cheng Ho Kee & Others v Secretary for Justice [2006] 9 HKCFAR 705

In this case, the Court of Final Appeal had to consider whether the officers of the Correctional Services Department ("CSD") are contractually entitled to recompense for the performance of what was known as "overnight on call". This case did not concern with on-call arrangement during rest day or statutory holiday.

In order to make the decision as to whether the officers of CSD are contractually entitled to any compensation, the Court had to consider whether the performance of "overnight on call" duty falls within Civil Service Regulations ("CSR") 668 or 669.

Under CSR 668, where an officer is required to stand-by at his place of work beyond his "conditioned hours", he may be paid an overtime allowance. In contrast, CSR 669 provides that any period beyond an officer's conditional hours where the officer is required to be on call either at home or in another fixed location or through the medium of a paging device, so that he is continuously and immediately available to report for duty if required, is not regarded as overtime and is not subject to any recompense.

In this case, the officers were required to perform "overnight on call" duty whereby they were required to remain in an area in the immediate vicinity of the penal institution and be "on call". The area in which officers performing "overnight on call" are required to remain is provided by and under the management of the CSD. Situated within the area are numerous facilities provided to the officers. While performing "overnight on call", officers do not have to be in uniform and they are not directed as to how they may employ their time.

Given that it was accepted that the officers perform "overnight on call" during times which are beyond their "conditioned hours", the question is whether the performance "overnight on call" duty falls within CSR 668 or 669, i.e. whether the area which the officers stay during "overnight on call" is the "place of work" concerned within CSR 668.

In this case, the Court took the view that the area in the immediate vicinity of the penal institution was not a place of work. It was an area with residential and recreational facilities for the officers' use whilst performing "overnight on call". Their "place of work" was the penal institution concerned. Accordingly, the overtime allowance provided for under CSR 668 was not payable to them.

The Court held that the period of "overnight on call" is within CSR 669 since the officers are required by the CSD to stay in a specified area (not being a "place of work") when performing "overnight on call". As a result, the time spent during "overnight on call" is not to be regarded as overtime and is not subject to any recompense.

In both cases above, the Court of Final Appeal turned to the interpretation of the relevant contractual documents, i.e. the letters of appointment (together with the relevant policies and regulations) in the doctors' case and the CSR in the officers' case. Despite the arguments put forward for overtime allowance in both cases, the Court held that upon a proper reading of such contractual documents, the performance of overtime/overnight on call duties did not qualify for any compensation.

Since whether overtime work payment depends solely on contractual arrangement and does not governed by the Employment Ordinance, employers should clearly set out in the employment documentation whether overtime is to be compensated and the manners of calculation of overtime payment.