The whole thing sounds a bit odd. Takes on a second job, fair enough, gets injured on that job, why is the second employer not paying for his downtime ?
I actually see a lot of holes in his case, paras 34, 25, and 30 come to mind. Failing to inform CAD (not CX) of a medical issue (look at the timeline) is reason for the CAD to cancel a licence. The AVMED doctors assessing fitness to return to flying are delegates of the CAD. Did the also inform the FAA that they were medically unfit ? They pull certificates pretty quickly as well for not following their rules.
There is also the slight matter of CAD and flying aircraft above 1600 kg. Did they obtain the appropriate approvals ? and keep the appropriate records ?
While they are pushing for unfair dismissal based upon USERRA, did his actions breech the HK ANOs prior to termination ? He has passed a HK Air law exam, and has his own personal obligations under the ANOs when unfit.
Interesting reading an FAQ on this (
Military Leave Requirements Under USERRA ). CX apparently only had to give him unpaid leave, para 23 of his complaint said CX were supposed to give him paid leave. And he had to pay CX medical coverage while he was on leave, did he ?
6. Do we have to pay employees on military leave?
No. USERRA only requires unpaid time off. The military generally pays its activated members. Employers often provide pay for at least a limited period of time, in recognition of the duty the employees are fulfilling and because military pay is often much less than the employee’s normal wages. Many employers also allow employees to use any accrued vacation during military leave, although you may not require employees to use vacation. Note, however, that the Fair Labor Standards Act requires that exempt employees who take military leave and work for the employer in the same week must be paid for the entire week in order to maintain the exempt status.
7. How are health care benefits covered during military leave?
USERRA requires employers to allow any employee on a military leave to elect and pay for continuation of coverage for himself and dependents under any health care plan provided in connection with employment. This coverage ends after 18 months or, if earlier, on the date the veteran fails to return or apply for return to employment as required. (See Return to work requirements.) The person electing this coverage may be required to pay up to 102% of the full premium associated with coverage for other employees. If the period of service is less than 31 days, the employer must continue health insurance as if the person is actively employed, and the person may be required to pay only the regular employee share of the premium.
If the coverage is terminated while the employee is on a military leave (either because the employee elects not to continue the coverage, because the period of service exceeds 18 months, or for any other reason), the employee and his dependents may not be subject to waiting periods or preexisting condition exclusions upon reinstatement.
The other small issue is returning to work. I see no mention of the certificate showing satisfactory completion of military service, I see he asked to return to work, but did he supply the certificate ? That certificate is required before an employer would be
obliged to return him to work. Was it obtained, was it provided to the employer ?
From what is written in the complaint, he was not disabled when he asked to return to work, he was still recovering from an illness or injury that was incurred in or aggravated by the period of service. It would seem then he was actually still in military service.
It would seem that the whole time he was in the reserves, and recovering from injury, he should have been on unpaid leave, according to the FAQ above. Why should he be on CX sick leave for an injury from a second employer ?
I am not condoning either sides actions, para 56 sums it up nicely, "No one is perfect and Mr. X is no exception to that rule."