JOHN WALLACE DICKIE AND OTHERS v. CATHAY PACIFIC AIRWAYS LTD

JOHN WALLACE DICKIE AND OTHERS v. CATHAY PACIFIC AIRWAYS LTD

Clause 35.3 does not give an unfettered right to bypass Appendix 1 where the underlying reason for dismissal is alleged misconduct; the disciplinary procedures in Appendix 1 must be invoked and completed (with reasonable expedition) before dismissal can take effect, but once disciplinary proceedings are concluded the employer may then exercise the right to terminate under clause 35.3 or dismiss for misconduct as appropriate (answers: Issue 1(a) No; 1(b) Yes; 2(a) No; 2(b) Yes).

Citation
JOHN WALLACE DICKIE AND OTHERS v. CATHAY PACIFIC AIRWAYS LTD
Parties
Plaintiffs: John Simpson Warham and others; Defendants: Cathay Pacific Airways Limited and related companies (including Veta Limited and USA Basing Limited)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 March 2009
Case Number
HCA1405/2006
Procedural Posture
Consolidated Employment Wrongful Dismissal Actions / Trial of Preliminary Issues (determination of Contractual Construction)
Outcome
Preliminary issues answered as follows: Issue (1)(a) No; Issue (1)(b) Yes; Issue (2)(a) No; Issue (2)(b) Yes.
Legal Topics
Wrongful Dismissal, Contractual Construction, Disciplinary Procedure, Payment in Lieu of Notice, Trade Union Activity
Source Language
EN
Employment Law Contract Law Industrial Relations Wrongful Dismissal Contractual Construction Disciplinary Procedure Payment in Lieu of Notice Trade Union Activity

Case Brief

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Parties

John Simpson Warham and others

Plaintiffs

Cathay Pacific Airways Limited and related companies (including Veta Limited and USA Basing Limited)

Defendants

Procedural Posture

Consolidated Employment Wrongful Dismissal Actions / Trial of Preliminary Issues (determination of Contractual Construction)

Legal Issues

  1. 1 Whether employer may bypass contractual disciplinary and grievance procedures (Appendix 1) by terminating employment under clause 35.3 by giving three months notice or payment in lieu when the underlying reason is alleged misconduct
  2. 2 Whether clause 35.3 is qualified by Appendix 1 so that dismissal for misconduct requires completion of disciplinary procedures before termination can take effect
  3. 3 Whether, once disciplinary procedures have been carried out, employer may then terminate under clause 35.3 irrespective of outcome

Ratio Decidendi

Clause 35.3 does not give an unfettered right to bypass Appendix 1 where the underlying reason for dismissal is alleged misconduct; the disciplinary procedures in Appendix 1 must be invoked and completed (with reasonable expedition) before dismissal can take effect, but once disciplinary proceedings are concluded the employer may then exercise the right to terminate under clause 35.3 or dismiss for misconduct as appropriate (answers: Issue 1(a) No; 1(b) Yes; 2(a) No; 2(b) Yes).

Court Disposition

Preliminary issues answered as follows: Issue (1)(a) No; Issue (1)(b) Yes; Issue (2)(a) No; Issue (2)(b) Yes.

Orders

  • Preliminary issues answered as stated; parties to be heard on costs and consequential orders