Overview

Doctors have been dedicated to serving the Hong Kong community well, particularly at times when there were a great shortage of doctors. It is quite frequently the case that doctors are required to work extremely long hours beyond the normal hours as stipulated in their employment contracts in order to care for patients around the clock.

This case concerns claims by doctors employed by the Hospital Authority (ʺHAʺ) over an entitlement to compensation as a consequence of being assigned on‐call duties beyond their normal hours. Contractually, HA doctors are required to work 44 hours a week, namely a 5.5 day week, working from 9 am to 5 pm on weekdays and from 9 am to 1 pm on Saturdays, with Sundays off. The doctors concerned in this case are those who are rostered on ʺnon‐resident callsʺ, that is, to be on‐call whilst away from the hospital when such on‐call duties may fall outside their normal working hours, on a statutory holiday or a statutory rest day.

Decision

The doctors successfully claimed compensation in the Court of First Instance for ʺrest daysʺ and ʺholidaysʺ but lost their claim on compensation for overtime worked. The case went to the Court of Appeal which upheld the decision of the lower court. However, the Court of Appeal held that employees who were on non‐resident call on a rest day or a statutory/public holiday but not called upon to provide patient treatment that day should only receive nominal damages.

Both the HA and the doctors appealed to the Court of Final Appeal. The central issues that the Court of Final Appeal had to consider were as follows:

  1. ʺovertime issueʺ ‐ the doctors asserted a contractual right to time off or, in default, to monetary compensation, for working on‐call after normal hours, where no rest days or holidays are involved;
  2. ʺnominal damages issueʺ ‐ the doctors sought to overturn the Court of Appealʹs decision that doctors rostered on‐call so as to be deprived of a rest day are only entitled to nominal damages if it turns out that they are not in fact required to provide any patient treatment on that day;
  3. ʺentire day issueʺ ‐ the HA challenged the Court of Appealʹs decision that compensation awarded to a rostered doctor who is in fact called on to provide patient treatment on a rest day should be limited to the hours actually worked, that is, the time actually spent providing treatment to patients, and not for loss of the entire day; and
  4. ʺholiday compensation issueʺ ‐ the HA argued that compensation is claimable in relation to statutory holidays only if and to the extent that the rostered doctor actually had his holiday interrupted by being required to administer patient treatment.

1. Overtime

The Court of Final Appeal found that the letters of appointment provided no basis for the doctors to claim for overtime compensation since the letters were held unambiguously to state that the doctors concerned were expected to work overtime and to perform on‐call duties, sometimes working on shifts in order to provide a 24 hour coverage. However, it was not suggested that there would be any extra compensation for such work. Such a package was offered by the HA and accepted by the doctors and there was no provision in the HAʹs Human Resource and Administration Manuals or in its rules and regulations to displace the position evident in the letters of appointment which took effect as the prevailing contractual documents.

2. Nominal damages

The HA accepted that there was a breach of obligations on its part to grant rest days under the Employment Ordinance (Cap.57) (ʺEOʺ), which is defined as ʹa continuous period of not less than 24 hours during which an employee is entitled to abstain from working for his employerʹ. When a doctor is on non‐resident call, it is common ground that he is required to 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. Accordingly, he is not entitled to abstain from working for the HA. It follows that a day rostered on non‐resident call could not qualify as a rest day under the EO.

The Court of Final Appeal held that when a doctor is on‐call on a rest day, the fact that he may or may not actually be required to treat any patient is irrelevant as the doctor’s loss is the loss of a rest day which entitles him to abstain from work. The Court of Final Appeal was of the view that nominal damages was inappropriate. The damages awarded should aim to place the doctor in the position he would have been in if the HA had duly granted him a rest day in accordance with its obligations under the EO. Therefore, it was held that damages should be equivalent to a full dayʹs wages (at the doctorʹs then applicable salary) where a rest day has been missed and cannot practicably be replaced by an alternative day off.

3. Entire day

It follows from the nominal damages issue above that doctors who have worked on a rest day are entitled to be compensated on the basis of the loss of an entire day. Whether or not they are required to provide their professional services and for how long in the course of the day spent on‐call is irrelevant.

4. Holiday compensation

As with rest days, a doctor who is on‐call during a statutory or public holiday is deprived of that holiday and such breach should be compensated by providing damages equivalent to a full dayʹs wages (at the doctorʹs then applicable salary) and not merely in nominal damages.

Practical Implications

Should an employer expect or require an employee to work overtime, such a requirement should be clearly provided for in the employment contract and/or employee handbook forming part of the employment contract.

Furthermore, merely rostering employees ʺon‐callʺ may result in a failure on the employerʹs part to comply with its statutory obligation to grant employees a statutory rest day or statutory holiday as required under the EO. If employers require employees to work on a rest day, consent from the employee is required and a substitute rest day should be provided within 30 days after the original rest day. If employees are required to work on a statutory holiday, employers must provide employees with an alternative holiday in accordance with the EO. An employer who without reasonable excuse fails to grant statutory holidays or rest days is liable to prosecution and, upon conviction, to a fine of HK$50,000.

Leung Ka Lau v Hospital Authority [2009] HKEC 1707