Hong Kong: Doctors Succeeded In Their Claims For Rest Days and Statutory Holidays 

March, 2006 - Cynthia Chung, Partner

Doctors working in public hospitals claimed that, in breach of their employment contracts as well as the Employment Ordinance, for many years the Hospital Authority had required them to work long hours without proper compensation. The doctors in this latest round of confrontation with the HA successfully claimed compensation for "rest days" and "holidays" for which they had been deprived but lost their claim on compensation for "overtime" worked. Overtime Paid overtime is not a statutory requirement so it is purely a matter of contract. Under the letters of appointment of the doctors, their normal hours of work were 44 hours per week but they would be required to work overtime if necessary. The doctors in the present case were subject to an Honorarium Scheme which was put in place to recognise that doctors work many hours of overtime, for which they would not otherwise have received any compensation. The Scheme provided a monthly entitlement at fixed rates to the doctors who came within the specified criteria for payment. They were duly paid under the Scheme. The Court considered that since the Honorarium Scheme was part of the contracts and was intended to be recognition for doctors working overtime, the doctors' claim under this "overtime" head should be dismissed. In view of the interns' position, their letters of appointment did not even mention "normal hours". In addition, according to the Human Resources Policies Manual, employees under training who were required to attend duty beyond normal hours in connection with their training did not qualify for overtime allowance. The Court considered that it was a clearly understood position that interns had to work very long hours and such was part of their training. In no way would they receive special compensation for the additional hours of such training and their claims were dismissed. Rest Day & Statutory Holiday Rest days and statutory holidays are provided under the Employment Ordinance. In this case, although Sundays were granted as rest days, in many occasions, doctors were indeed on call and/or did ward rounds on Sundays. The issue before the Court was whether being on call and/or doing ward rounds constituted "work" such that doctors could be said to have been deprived of their rest days or of their statutory right to abstain from working on a rest day. There were 3 categories of "on-call": i. Resident call The doctors on resident call had to respond at short notice and expected to stay within the hospital compound. The activities of a doctor on call were wide ranging and include making ward rounds, attending to ward duties, out-patient sessions, and performing operation. The Court considered that doctors on resident call were at their place of work and were working for the entire period in which they were on such resident call. ii. On call outside the hospital The doctors on this kind of call might or might not be expected to stay in the hospital compound but was expected to stay within the 30-minute distance parameter and remain contactable via pager or mobile phone. The Court concluded that a doctor was not "at work" or "working" simply by virtue of being on call outside the hospital. However, if circumstances arose such that in his best professional judgment, he was required to and did return to the hospital to work, he would be regarded as returning to "work". iii. Post-duty ward rounds There are situations where a doctor whom, after being on call on Saturday 9am until 9am on Sunday, then had to stay for 2 additional hours until 11am on Sunday to make a post-duty ward round. Thereafter he was not required to stay at the hospital but was expected to stay within a 30-minute distance parameter. The Court considered that for those 2 extra hours in the hospital, the doctor indeed was "working" in the true sense and this would be a breach of the EO and of the Human Resources Policies Manual. Yet, it would be unjust for the HA to be liable to compensate the doctor for an entire day. The issues in disputes regarding statutory holidays were similar to those under "rest days" and the conclusions reached also applied to this claim. Conclusion The Court concluded that the claim for "overtime" was dismissed, and the claim for lost rest days and statutory holidays succeeded for the full six-year period. The Plaintiffs sought a declaratory judgment. Since a declaratory judgment was a matter for the Court’s discretion, the Court considered no useful purpose in exercising such discretion and declined to do so. The Plaintiffs sought time-off in lieu with pay as against an award of damages. The Court considered that this approach was flawed. First, the Plaintiffs had progressed in their careers over the years and their salaries had increased. Time-off in lieu as compensation would not account for the different values accorded to time between then and now. Second, time-off in lieu presented a form of injunctive relief and the Plaintiffs had not made out a case that damages would not be an adequate remedy. Third, giving the Plaintiff time-off in lieu would be devastating to the HA and to the efficient ongoing operation of the public hospital and medical system. Therefore, the Court granted an award of damages, to be assessed. The Court ruled that a doctor on resident call on a rest day or statutory holiday should be considered to be at work for the entire day. As to the doctor on call outside the hospital, if and when he was called, and in fact went into the hospital, that such constituted "work" requiring recompense. As to the question of what period of that day should be recompensed, the question should be left to internal HA administrative process. Should the HA fail to address the matter and the issue of quantum is required to be resolved judicially, the Court considered that assessment of quantum should be proceeded on the basis of a reasonable evidential assessment of the hours actually worked by doctors on their past rest days. The compensation for the total hours actually thus worked on rest days and statutory and public holidays should be based upon the then prevailing monthly salary of the particular doctor.



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