49'ers Court of Final Appeal Result
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Voiceofreason
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.
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.
Last edited by Liam Gallagher; 27th Sep 2012 at 06:36.
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Liam
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.
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.
Last edited by Voiceofreason; 27th Sep 2012 at 06:41.
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Voiceofreason
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.......
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.......
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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
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
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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.
Glad I turned CX down years ago, and had a somewhat rewarding career with AC. The 49'ers, what a shame.
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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
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
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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.
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.
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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.
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.
Last edited by DUSKY DOG; 28th Sep 2012 at 10:37.
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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.
Glad I turned CX down years ago, and had a somewhat rewarding career with AC.
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.
