Member Article

In Hong Kong, some employers grant to employees more than one day off per week while the Employment Ordinance (“EO”) only requires the employer to grant one rest day in every period of seven days. Under such circumstances, there is a question as to whether the employees are entitled to an alternative holiday when the statutory holiday falls on a day off. The recent decision of the Court of Appeal in Tam Wai Mei (“Tam”) v Cathay Pacific Airways Limited (“Cathay”) CACV 232/2005 decided on this issue. This appeal case was an appeal from a decision of the Court of First Instance. In June 2005, the Court of First Instance ruled that by Tam’s shift roster, she was only required to work five days a week. The EO does not prohibit an employer from granting more than one rest day to the employees and thus in this case Tam was entitled to two rest days per week. By not granting Tam an alternative holiday when a statutory holiday fell on a rest day, Cathay was in breach of section 39 of the EO and liable to claim for compensation for not granted the statutory holidays as provided under that section. This decision had a significant impact on employers in Hong Kong who practise five-days work (Monday to Friday) per week and the rest day, in particular, Saturday, may not be clearly specified as a contractual day off or a statutory rest day. Based on the decision of the case, if the statutory holiday falls on any of the rest days, the employee would be entitled to an alternative holiday. If the employers have not granted the alternative holiday in accordance with the EO, it would have the effect of making such employers liable to claims for outstanding statutory holidays which fall on Saturdays. In the Court of Appeal, the decision of the Court of First Instance was overruled. According to the findings by the Appeal Judges, Cathay had in place a roster system under which Tam was notified the days on which she was required to work by the roster supplied on a monthly basis before the beginning of each month for which the roster was applied. The roster was marked clearly with the days on which Tam was required to work and it was marked “off” on two days in each week when Tam was not required to work. The way in which the roster system worked was in accordance with the requirements of section 39 of the EO. In addition, the Appeal Judges found that there was no warrant that the days marked “off” in the rosters should be treated as rest days under section 17 of the EO as there was no contractual provision between the parties to give effect to that. By giving Tam more than one rest day per week, Cathay was in compliance with the EO. In particular, it should be noted that she had been notified well in advance of the statutory holidays upon which she would be required to work and in such case the roster would specify at least an equivalent number of days “off” in lieu of each particular statutory holiday. The Court of Appeal ruled that such practice was in a manner and to the extent complied with the EO in relation to the grant of rest days and statutory holidays. On the part of the employers, if they grant more than one day off per week to the employees, they must notify the employees when the employees will be given an alternative holiday in substitution for a statutory holiday in order to comply with the EO.