The year of the dragon was relatively prosperous for employment law[yers] with three high profile employment case decisions (almost unheard of in Hong Kong):
In the first of these cases, Cantor Fitzgerald Europe and Cantor Fitzgerald (Hong Kong) Capital Markets Limited -v- Jason Boyer and Others, Cantor Fitzgerald (a capital markets investment bank) failed to win damages in the High Court against four former executives who left on the same day to join a start-up. This team move judgment has provided us with useful guidance on (1) the scope of fiduciary duties and duties of fidelity (2) the meaning of "acting in concert" in the context of a team move; (3) the enforceability of restrictive covenants; and (4) the conflict of laws in relation to employees on secondment in Hong Kong.
Key take-away point: This judgment (if followed) means that an employer and employee will not be able to contract out of Hong Kong law. Employees employed under a foreign law governed contract will be entitled to and should be afforded the same rights, benefits and protections that other employees are entitled to under the Employment Ordinance. Any contract term that purports to extinguish or reduce those rights will be void if exercised while the employee is based in Hong Kong.
We also had two Court of Final Appeal (CFA) decisions involving Cathay Pacific:
The first decision (Cathay Pacific Airways Ltd v Kwan Siu Wa Becky and Ors) involves the calculation of annual leave and holiday pay and impacts numerous employers in Hong Kong particularly those who remunerate their employees by way of commission schemes and cash allowances.
Key take-away point: If an employer wishes to calculate its contractual annual leave/holiday pay at a different rate from its statutory annual leave/holiday pay, then it must clearly state the rate of contractual annual leave/holiday pay in the contract of employment.
In the second decision (Cathay Pacific Airways Ltd and Ors v Campbell Richard Blakeney-Williams and Ors) the CFA ruled on the correct interpretation of section 21B Employment Ordinance and the meaning of taking part in the "activities of a trade union". A number of pilots were dismissed in 2000 for working to contract as part of a trade union initiative and the question arose as to whether this could be considered as taking part in trade union activities and whether these activities were carried out at "an appropriate time", ie outside working hours.
Key take-away point: Trade union members who "work to rule" as a form of protest are protected from being dismissed, as "working to rule" is deemed to be "activities of the trade union".
Looking to the year ahead, it could be a prosperous one for fathers as there is a proposal to introduce statutory paternity leave for all employees (compulsory paternity leave was recently introduced for civil service workers). Finally there are also plans to bring in a significant change to the unreasonable dismissal regime, bringing Hong Kong one step closer to those employee-friendly jurisdictions which make it difficult for employers to dismiss without cause.
For more information please contact Gareth Thomas or Tara Grossman in our Hong Kong office.
Key contacts
Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Emma Rohsler
Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris
Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.