49'ers Court of Final Appeal Result

[spleener]

The 49'ers Court of Final Appeal judgement can be read here:

Judgment (http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=83623&currpage=T)

Good reading, unless you are Cathay Management.

:ok:

[Liam Gallagher]

Really..... You must have read a different report than me.

I will leave it to others to comment further.

[Walk-Around Bitch]

I don't understand how you can make that conclusion from that report. The report backs the decision to reduce the awarded sum :ugh:

[Arfur Dent]

Next time you decide to work on a G day or help out your dear employer, read this and see what Cathay really thinks about you and your rights, your life, and anything you feel strongly about that differs from their corporate view. You are an inconvenient necessity. You are held in utter contempt. You are of no value and have all the attributes of a moron.
Just as long as you know.
By the way, if you are naive enough to believe otherwise, apply the above hypothesis to EVERYTHING CX comes up with. Then, at least you can help out in the true knowledge of who and what you are actually helping.

[Liam Gallagher]

Have a read of Para 85, it is the "guts" of the striking down of the libel damages from $3m to 700k. Essentially, a HK libel case involving a HK solicitor was used as a yardstick by the original Judge to arrive at the $3m dollar figure.

The Appeal Judges ruled libeling a solicitor is more serious than libeling a pilot. I appreciate this is very subjective, however given the Judges are all Solicitors they are treading on eggshells making such a claim, and need to be uttterly certain they understand the world of Pilots. I appreciate that a solicitor wrongly and publicly accused of imbezzlement will have suffered career limiting damage. The Judges readily accepted that the Solicitors damage was obvious, because they are all Solicitors. However, to them the 49'ers damage was less obvious and therefore needed to be proven. How the heck do you prove that? To us it is obvious.

To a fellow pilot, a pilot wrongly accused of being a poor, disloyal employee has his career prospects damaged to the same extent as the solicitor in question. The fact the solicitor was libelled to a wide audience, whereas the 49ers were a narrow audience is irrelevant, as the opinions of a pilot's peers are paramount, because we are peer-reviewed like no other profession on the planet. Whilst people will be reluctant to trust that solicitor with their money, pilots who do not fully appreciate the background to the 49ers will be reluctant to trust their lives with someone "tainted" to the extent the 49ers were. Further, the solicitor got a retraction from the publication, the 49ers got no such retraction. In fact, Nick Rhodes repeated the accusations that the 49ers had sickness issues when announcing the intention to Appeal. These were the same sickness issues he famously couldn't substantiate when he had a bible in his hand.

I cannot help but feel, that yet again, Cathay Pilots were on the raw end of decision by Judges who fundamentally do not understand our profession.

[crwjerk]

Bad luck to John and the rest of the boys who have fought tirelessly for justice. When the system is run by under the table corrupt deals, you've got to be admired for taking the fight to the end.

[hongkongfooey]

FFS!! A solicitor worth more than a pilot, one of the least trusted professions v one of the most, only in HK

[spleener]

With respect, I think the main point may have been missed here.

The judgement is a decisive win for the "three legs" of the 49er's/CPU's case. It substantively reinforces [ALL!] HK employees rights with regard to termination and union activity. We should be applauding this landmark win as a victory for all HK workers [that's you and me] and a resounding loss for the employers - in this case ; Cathay Pacific, Veta, USAB.

The thread focus on the reduced defamation award being upheld is an emotive sideline. To quote JW: "Whilst we may be disappointed with this last aspect of the judgment, we have been fully vindicated in our stand for what is right, ethical and moral; words that hitherto have not appeared in our opponents' vocabulary. Now they will have to buy a new dictionary."

I congratulate, and thank the 49er's and CPU.:ok:

[jonathon68]

a Cathay Pacific spokesperson said:“We respect the judgement of the Court of Final Appeal. Our legal team is studying the respective rulings and the company will consider the necessary steps in their detailed applications.”

What steps can they possibly take with a Court of Final Appeal judgement?

[Bob Hawke]

Whippings in the street, perhaps?

[NoAndThen]

The beatings will continue until moral improves!

[Frogman1484]

I think this is a good result. Yes it is not 3 mil but it is also not 150k!
The precedence in law is good!

[Meccano]

Not good enough.
Even 3 Million wasn't good enough to compensate for the damage caused to those guys! Including the death of that young man. I read that some bird in HKG is suing her ex-boyfriend for 80 MILLION HKD in commission on an apartment block deal she alleges to have facilitated for him.
3 Million is PEANUTS in HKG.

Would this open the way for a Civil case on grounds of pain and sufferring? Or is there even such a law in HKG?

[freightdog188]

Cathay Pacific lost a long-running dispute with its flight attendants over holiday pay, in the city’s top court on Wednesday.

Quashing the airline’s challenge against an appeal court judgment, the Court of Final Appeal ruled that Cathay should include some allowances and commissions when it calculates its cabin crew’s holiday pay.

The calculation should take into account commissions on duty-free sales, and allowances for line duty and ground duty, earned by attendants in the air and while waiting for flights, the court ruled.

The dispute involved some 4,400 attendants and about HK$100 million in pay, the Cathay Pacific Airways Flight Attendants Union said.

It stemmed from claims lodged with the Labour Tribunal about four years ago by flight attendants Becky Kwan Siu-wa, Vera Wu Yee-mei and Jenny Ho Kit-man.

The tribunal initially ruled in their favour and ordered Cathay to pay the shortfall, but the airline won on appeal. That ruling was overturned last year by the Court of Appeal.

The union welcomed Wednesday’s ruling, saying it helped to clarify the meaning of holiday pay for employees.

“It helps to avoid further disputes between the employers and employees on this issue,” the union said in a statement.

According to the union, more than 4,000 attendants have filed Labour Tribunal claims for the pay.

[Victor Inox]

And this for desserts:

Judgment (http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=83621&currpage=T)

[ByAirMail]

My understanding is that with this ruling the 49ers can now pursue civil cases against individuals. Tony Taylor and his merry men will pay, not Swire, they will leave their Princess (ret.) for the dogs.

[Beta Light]

Looks like that " Caring Company" award is losing its shine.

[Meccano]

Why do you guys stay ay CX?
Mystifies me!
They are out to screw every last one of you - but you'll defend them to the bitter end.

Insane.

[China Flyer]

Who's defending CX?



Why do we stay? 'Cos most of us are connected to HKG by the proverbial Golden Handcuffs, and there is nowhere else to go to get a similar-level job.

[Voiceofreason]

I'm not sure it does what you are saying it does.

The judgement seems to be saying that IF the Company wants to sack someone for misbehaving, they have to put us through the D&G. It is already known that they can then sack us afterwards no matter what anyway, but the implication (and kind of referred to in para 75) is that they just need to keep their mouth shut next time they sack 51 pilots, and there isn't anything any of us could do about it.

I'm totally reassured...

[Liam Gallagher]

That's the way I read it too.

We have in our COS a 3 month termination of contract clause. We also have a D&G procedure. The company used an ad hoc procedure to select the 49ers and then used the 3 month clause (only) to terminate their employment.

The original Judge said the company should have used the D&G provisions rather than the "Star Chamber" and consequently gave $150k and an additional months pay in lieu of the time to carry out the D&G. He then awarded $3.3 for Defamation.

The Appeals Court Judges disagreed and said the Company did not need to use the D&G and struck down the 1 months pay. The also wound the Defamation award back to $700k.

The Final Appeal Judges partially reversed the Appeal and said the company should have used D&G. However, I seem to recall that in a Pre-trial ruling it was ruled that the company can run the D&G, find you not guilty, then given you 3 months salary and show you the door. That is now the status quo.

They can, as you say, keep their mouths shut and just give you 3 months salary. However, in those circumstances they may be hearing from your lawyers. However, if they want to be bullet-proof, they can call you in, have the satisfaction of telling you that you are a prat, give you $150k plus 3 months plus a weeks salary in lieu of a "bodged" D&G. You cannot touch them, they have fulfilled all the requirements of HK Law.

Don't forget, we are employed under the same law as amahs, so we cannot expect to be treated any differently.

As a footnote. The Final Appeal Judges ruled that each side bear their own costs. I suspect that will be a huge blow to the 49'ers and their backers. The costs of these proceedings would have dwarfed the sums awarded. For the company, the costs are just another cost of doing business.

[Voiceofreason]

Yes, the costs of an 11 year legal case don't bear thinking about.

One point you mentioned that I'm not sure about is the $150k - that was awarded (from what I can tell) because of the participation in union activities being protected under the EO. Again, they only got that because of what Tyler and Chen said (i.e. that it was the union's doing). Without those statements, how could they have proved what they were fired for?

I'm also not sure JW's statement that they've finally succeeded in getting what Lee Cheuk Yan has been after for years is correct either - there seems to be some issue over what is protected under the law and what isn't. My reading (and I'd appreciate others' views) is that it's only protected if it takes place at outside of normal working hours - i.e. CC was protected, but MSS may not have been.

[Liam Gallagher]

The $150k was awarded under the Employment Ordinance, as the maximum allowed under the Ordinance for wrongful dismissal. As an aside, it is curious that Crofts got 70k Sterling (HK$800k) for wrongful dismissal from the UK Labour Tribunal;- remember we are all amahs.....

This is complex, and this is my take.. The Final Court of Appeal records the original Judge, Justice Reyes, as summarizing Cathay firing the 49ers for belonging to a Union and engaging in Union activities. Both the Court of Appeal and Final Court of Appeal rejected Cathay's argument that this was grounds for dismissal. On that basis, the 150k was awarded.

I will really go on a limb here and say, just like the Adjudicator in the SO bypass case, the original Judge (Reyes) listened to the witnesses and formed an opinion as to the fundamental human qualities of both parties and decided that, ostensibly, those representing Cathay were, shall we say, lacking. Consequently, he ruled heavily in favour of the employees, the 49ers (as did the Adjudicator in the SO bypass case). Judges, like most people, don't like being lied to.

The Appeal Judges do not deal with the witnesses. They do not see the lies, the body language, and consequently the human side; the pain, deceit, the arrogance. I find it curious how the Appeal Judges say they will limited themselves to reviewing the Law and then comment on evidence and effectively retry the case. The Appeal Judges thought Cathay conducted their Defence appropriately and therefore the $300k special damages were inappropriate. They completely ignored the hidden documents from the "star chamber", - some might call that an inappropriate Defence and others call it perjury. The Appeal Judges were utterly unaware of the bizarre testimony from Nick Rhodes regarding sickness rates.

Sorry, a bit of a rant, but I find it frustrating that the the 49ers got such a raw deal from the HK Judiciary. Justice Reyes looked the witnesses in the eyes, and saw what we all saw. The Appeal Justices, from the rarified atmosphere of an Ivory Tower, just didn't get it. I suppose there is intelligence and then there is common sense.......

[mr Q]

Congratulations to the band of brothers for
Their Committment when others wavered their lawyers advised them badly and the world was not particularly interested in their injustice
The victory came at a huge cost in lives and careers
Well done and well done to the cabin crews as well

[jacobus]

Yes. Congrats to the cabin crew; and goodbye to 13m (if ever a chance of paying it ) and hallo to our allowances getting taxed. M'****rs

[BusyB]

What are you talking about. Allowances are not involved in the ruling?:confused:

[speedyb]

And I thought the corporate culture at Air Canada was bad.
Glad I turned CX down years ago, and had a somewhat rewarding career with AC. The 49'ers, what a shame.

[tuck]

So let me guess?
Soon the allowance will stop being paid at the outport, and CX will introduce Duty Time Allowances (DTA) and the spin will be, it is a more fair and beneficial policy.
BOHICA

[Pomerian]

All those Line Duty Allowances, Ground Duty Allowances and Duty Free Commission were being taxed all these years.
But it's just that CX didn't include all these in calculating the holiday pay (including annual leave and statutory holiday)

Outport Allowance has already been out of the scope for long (since cabin crew didn't appeal for that after the ruling of Court of Appeal). It wouldn't be treated as wages and so wouldn't be taxed.

[DUSKY DOG]

My thoughts go out to the 49's for restoring the integrity of the Pilot Group.
The compensation was nowhere enough but at least we now know how evil and selfish the Management Team at CX have been .
If only the rest of the Pilot group stood up as the 49's did we have a more level playing field in terms of salaries and conditions of service.
Our failure to support them has left us with an industry no longer attractive for the average Pilot.
This industry will no longer be for my kids.

[Thunderbird4]

And I thought the corporate culture at Air Canada was bad.
Glad I turned CX down years ago, and had a somewhat rewarding career with AC.

Are you kidding? Love what AC management has done for your career!

[airdualbleedfault]

Doncha just love that pollution ridden crap hole? Even the court of appeal are morally bankrupt, but why not, most of the rest of that place is.