For those who said it would never happen...
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For those who said it would never happen...
2nd March Hearing
Dear CPU Member
A pre-trial hearing of The 49ers' case is to be held on 2nd March 2009 at the High Court Building, Queensway, Hong Kong. It has been scheduled for the whole day and is open to the public. As a supporter your attendance would be appreciated. To find the court number and time, go to the following link:
Court Lists
At this hearing matters relating to the breach of contract issue will be heard by The Hon. Mr. Justice Reyes.
Throughout this dispute Cathay has held that, irrespective of the employment protection terms contained in the contract of employment, they had an “unfettered right” to terminate the employment of The 49ers - at any time.
Effectively the question to be resolved is: “Does your contract of employment offer you any employment protection at all or does your employer have an unfettered right to just terminate your employment on notice at any time without giving reasons?”
Why is this relevant to us?
The Cathay vision is to be a “socially responsible company” and Cathay holds itself to be a “career airline”. Our Conditions of Service provide for a contractual Discipline and Grievance procedure “where the principles of commonsense and natural justice” are to apply. Cathay management's treatment of The 49ers and continued defence of their actions against The 49ers suggest the opposite.
Our Conditions of Service are clear, yet consider these contractual breaches:
· Direct Entry Captains stopping junior officers’ promotion
· Failure to pay contractual bypass pay
· Breaches of rostering practices and the AFTLS
· Freighter crewing
Unfortunately the list is long. The reality is that the security of the contract and our careers are at risk. It appears CPA management’s argument is that we have no better than a 3-month contract, irrespective of the various terms, that the Conditions of Service provide.
The 49ers' legal action is about issues fundamental to our contract.
The media and other organisations are showing active interest as the outcome is relevant to the contracts of employment of the wider Hong Kong community.
Among the team of barristers who will be advocating on behalf of The 49ers is Dr. Hon. Priscilla Leung Mei-fun. As well as holding the position of Associate Professor at the City University of Hong Kong School of Law, Dr. Leung is an elected member of the Legislative Council representing the Geographical Constituency of Kowloon West. She is also a highly respected arbitrator and labour advocate and, earlier this month, was successful in moving a motion in the Legco House Committee to relax the eligibility criteria for legal aid in Hong Kong.
Nigel Demery
The CPU was formed on 1st May 2005; Captain Nigel Demery was a founding member. His contribution to the labour movement has been enormous. Nigel celebrated his 55th birthday last month and, surprisingly, Cathay Pacific Airways did not offer an extension to his contract! Not surprisingly, Nigel is pursuing the matter with the Labour Department. The recent press coverage is attached.
HKCAD
Last October, CPU made representation to the HKCAD concerning an Air Safety Report which was inappropriately dealt with by the General Manager Aircrew of CPA. The details of the ASR are on the website. More importantly the response from the HKCAD is attached.
Best wishes
The CPU Admin
And this is just the beginning....
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This case, if won, might just be one of the most important ruling for us all. Good job CPU, I'm grateful for you not giving up on this issue. 
(And please don't start the AOA vs 49ers vs CPU debate again, it`s only damaging to all parties. Lets move forward and protect what's left of our carreers.)
(And please don't start the AOA vs 49ers vs CPU debate again, it`s only damaging to all parties. Lets move forward and protect what's left of our carreers.)
At last the 49ers' day in court, and the defamation element of the case should be very interesting. May the force be with you, gentlemen!
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The company has been found in breach of contract regarding the 49ers. Costs were also awarded in their favour.
About 4 years ago the AOA president told the 49ers they would NEVER see the inside of a courtroom. He then sold them out.
Whadya reckon now Murray......?
About 4 years ago the AOA president told the 49ers they would NEVER see the inside of a courtroom. He then sold them out.
Whadya reckon now Murray......?
Last edited by 6feetunder; 2nd Mar 2009 at 10:04.
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Cathay can’t skirt rules to sack staff, says judge.
Yvonne Tsui.
A judge ruled yesterday that Cathay Pacific Airways should not bypass its disciplinary procedures before sacking staff for disciplinary reasons.
The ruling was given by Mr Justice Anselmo Reyes in the Court of First Instance in determining a primary issue in a suit launched against the company for damages arising from the allegedly unfair dismissals of nine of its pilots in 2001.
The ruling was made on the hypothetical assumption that the dismissals were the result of misconduct. The court was told by barrister Robin Mcleish, counsel for Cathay Pacific, that an investigation would then have to be done to find out the cause of the dismissals.
The company is accused of breaking contracts after it terminated the pilots employment on July 9, 2001, by paying them three months’ wages in lieu of notice without assigning a cause. The pilots argued that it happened because of their involvement in a trade union, which instigated industrial action in July 2001. They are seeking damages.
Adrian Huggins SC, also for the company, argued it was the employer’s contractual right to choose whether to invoke disciplinary procedures even if it was assumed the reason was misconduct. The judge disagreed and said the procedural requirement was not a free-standing option for the employer to choose.
Cathay has to pay 80% of the cost of yesterday's hearing to the
Plantiff and a trial has been set on 06 Oct 09 on issues of damages it
has brought about. Both parties were asked to discuss and confirm
their directions within the next 14 days
Yvonne Tsui.
A judge ruled yesterday that Cathay Pacific Airways should not bypass its disciplinary procedures before sacking staff for disciplinary reasons.
The ruling was given by Mr Justice Anselmo Reyes in the Court of First Instance in determining a primary issue in a suit launched against the company for damages arising from the allegedly unfair dismissals of nine of its pilots in 2001.
The ruling was made on the hypothetical assumption that the dismissals were the result of misconduct. The court was told by barrister Robin Mcleish, counsel for Cathay Pacific, that an investigation would then have to be done to find out the cause of the dismissals.
The company is accused of breaking contracts after it terminated the pilots employment on July 9, 2001, by paying them three months’ wages in lieu of notice without assigning a cause. The pilots argued that it happened because of their involvement in a trade union, which instigated industrial action in July 2001. They are seeking damages.
Adrian Huggins SC, also for the company, argued it was the employer’s contractual right to choose whether to invoke disciplinary procedures even if it was assumed the reason was misconduct. The judge disagreed and said the procedural requirement was not a free-standing option for the employer to choose.
Cathay has to pay 80% of the cost of yesterday's hearing to the
Plantiff and a trial has been set on 06 Oct 09 on issues of damages it
has brought about. Both parties were asked to discuss and confirm
their directions within the next 14 days
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...an investigation would then have to be done to find out the cause of the dismissals.
Doesn't matter how Cathay try and spin this one..with the judgement now in favour of the CPU,the way is paved open for some VERY interesting lawsuits in the future..
Roll on Oct 6!!
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Congrats guys!
Take note Cathay and Mr. "management". You can't do whatever you want, even in Hong Kong.. and if you do ... you will pay. Eventually. This a great precedent for any managment strong-arming or funny business for all companies in the future. "To your bonus(that you won't be getting this year)."
Take note Cathay and Mr. "management". You can't do whatever you want, even in Hong Kong.. and if you do ... you will pay. Eventually. This a great precedent for any managment strong-arming or funny business for all companies in the future. "To your bonus(that you won't be getting this year)."
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REPORT ON THE PRE-TRIAL HEARING HELD ON 2ND MARCH 2009
Dear CPU Member
The hearing commenced in court #19 at the High Court, Queensway at 10:00 and was adjourned at 11:45 until 16:30 when Justice Reyes handed down his judgment. It was an open court hearing so all documents, evidence and the actual proceedings themselves are a matter of public record.
The crux of the matter to be decided was, under the terms of the contract of employment and in the event of dismissal for disciplinary reasons, can CPA bypass the Disciplinary and Grievance Procedure (“DGP”) and simply give its pilots 3 months’ notice of termination under clause 35.3 of the contract?
Put another way, can clause 35.3 be read as a stand alone term or is it modified by the DGP provisions in the case of dismissal for misconduct?
For the purposes of the pre-trial determination Justice Reyes made the assumption that The 49ers’ dismissals were for misconduct. As Justice Reyes put it in his judgement, “I stress that this is merely a working assumption. It remains an unresolved factual issue whether the Defendants actually had any such underlying motivation.”
The arguments that the CPA lawyers put forward in support of their position were interesting to say the least.
Firstly, they argued that they were entitled under the Employment Ordinance and under the clause 35.3 to give their pilots notice of termination without giving any reasons whatsoever. The EO argument failed because this hearing was about breach of the contract, not about their rights under the EO. Their 35.3 argument was unlikely to be successful given the numerous statements both in their pleadings to the court and in the media regarding The 49ers supposed “misconduct”. In any case, for the purposes of this determination it was being assumed that dismissal was for misconduct so, again, the argument failed.
They then put forward a proposition that the dismissal of The 49ers was nothing to do with misconduct, i.e. they did it just because they could under clause 35.3, and that their later public statements were after the event and, therefore, did not relate to the condition of the actual dismissals. This somewhat novel idea fell foul of the “improper collateral purpose” principle in that you cannot use one provision of a contract to bypass another and thereby obtain an advantage.
Next they put forward what they called the “soft way” and the “hard way” proposition. Under the “soft way” they argued they could simply dismiss under 35.3. Under the “hard way” they would go through the DGP but still end up with the same result as, irrespective of the outcome of the DGP, they would then just dismiss under 35.3 anyway. In effect they were arguing that going through the DGP would just be a waste of time.
The CPA lawyers then took this argument a step further. In order to shorten the DGP they proposed that CPA management could simply, commence the DGP, immediately find that there was no case to answer under the first step of the process, dismiss the charges and then terminate anyway under 35.3. This particular argument was one of their more repulsive proposals. In his judgement Justice Reyes characterised this as coming “close to positing bad faith on the Defendants’ part.”
This is very polite judicial language. Put more directly the CPA lawyers were saying, “it doesn’t matter what protections you put in the contract of employment, management will seek to find a way around them and terminate your employment anyway at its sole discretion.” This shows a very disturbing lack of respect for employees and their contract of employment and stands in stark contrast to the CPA vision statement that, “We are a socially … responsible company” - let alone a supposed career airline.
You may be interested to know that Nick Rhodes (the Director Flight Operations), Richard Hall (the General Manager Aircrew) and Sten Kroutil (the Flight Crew Personnel and Industrial Manager) were in the public gallery listening to the proceedings. They were also members of the Star Chamber team. It would be interesting to know if they endorse the arguments as put by their lawyers.
There then followed some legal debate on the actual interaction between the DGP and clause 35.3. CPA argued that, had it been the intention that the DGP should modify 35.3 to such an extent that it could not be used in the manner that they had proposed, then the contract should specifically state this. Justice Reyes opined the opposite view that under the principle of contra proferentem, where there is such an ambiguity, the contract should be interpreted against the party that unilaterally imposed the term; furthermore that, if their proposal were to stand, then it would have had to have been specifically stated in the contract that 35.3 could be read in isolation. In the event, CPA’s argument failed.
After further legal debate focussing mainly on precedent, Justice Reyes retired to consider his judgment. This was handed down at 16:30.
He ruled that, in the event of dismissal for misconduct, CPA must first follow the DGP and that, if they do not, they act in breach of contract.
This is a fantastic result as it means effectively the breach of contract leg of The 49ers’ case has been won.
However he also ruled that, irrespective of the outcome of the DGP, CPA still has the right to terminate the contract without cause under 35.3. This demonstrates how serious a weakness exists not only in the contracts of employment of CPA pilots but also, possibly more importantly, in labour legislation as a whole in Hong Kong.
Significantly, 80% of the costs of the hearing were awarded in our favour.
Justice Reyes then directed that, given his judgement on this issue, both parties should now consider what steps should be taken next to deal with further issues. He directed that this should be completed within 14 days (“and I mean 14 days”).
Attached to this report is a copy of Justice Reyes’ draft judgement and a SCMP article.
This is an enormous step forward and has established the second leg of The 49ers’ claim. After almost 8 years and despite CPA management’s efforts to the contrary, we have finally succeeded in having the first of the substantive issues heard in open court and, moreover, the result is immensely favourable to The 49ers and all Cathay pilots.
Thanks to all the supporters who were able to attend the hearing and, in particular, to Becky Kwan and the FAU Exco who were also present.
Best wishes
The CPU Admin
The Judgement as issued by the court along with the SCMP article are available here.
Last edited by cadence; 4th Mar 2009 at 17:00.
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Confused...
He ruled that, in the event of dismissal for misconduct, CPA must first follow the DGP and that, if they do not, they act in breach of contract.
However he also ruled that, irrespective of the outcome of the DGP, CPA still has the right to terminate the contract without cause under 35.3. This demonstrates how serious a weakness exists not only in the contracts of employment of CPA pilots but also, possibly more importantly, in labour legislation as a whole in Hong Kong.
This is a fantastic result as it means effectively the breach of contract leg of The 49ers’ case has been won.
However he also ruled that, irrespective of the outcome of the DGP, CPA still has the right to terminate the contract without cause under 35.3. This demonstrates how serious a weakness exists not only in the contracts of employment of CPA pilots but also, possibly more importantly, in labour legislation as a whole in Hong Kong.
Next time they want to fire 49 guys, just go through a DGP, then, no matter what the outcome, sack 'em anyway!
