DAMON NEICH-BUCKLEY AND OTHERS v. CATHAY PACIFIC AIRWAYS LTD AND ANOTHER

DAMON NEICH-BUCKLEY AND OTHERS v. CATHAY PACIFIC AIRWAYS LTD AND ANOTHER

Where the true or underlying reason for termination is alleged misconduct, clause 35.3 cannot be used to bypass the contractual disciplinary procedures in Appendix 1; the employer must invoke and complete those procedures (with reasonable expedition) before dismissal takes effect, after which clause 35.3 may be exercised.

Citation
DAMON NEICH-BUCKLEY AND OTHERS v. CATHAY PACIFIC AIRWAYS LTD AND ANOTHER
Parties
Plaintiffs: John Simpson Warham and others; 1st Defendant: Cathay Pacific Airways Limited; 2nd Defendant: Veta Limited; 2nd Defendant (hca 299/2006): USA Basing Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 March 2009
Case Number
HCA299/2006
Procedural Posture
Consolidated Employment/contract Actions (preliminary Issues) / Trial of Preliminary Issues; Judgment Delivered
Outcome
Preliminary issues answered for the Plaintiffs in part: employer may not bypass Appendix 1 by relying on clause 35.3 where the underlying reason is alleged misconduct; employer may terminate after disciplinary proceedings are completed.
Legal Topics
Wrongful Dismissal, Disciplinary Procedures, Payment in Lieu of Notice, Contract Interpretation, Trade Union Activity
Source Language
EN
Employment Law Contract Law Wrongful Dismissal Disciplinary Procedures Payment in Lieu of Notice Contract Interpretation Trade Union Activity

Case Brief

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Parties

John Simpson Warham and others

Plaintiffs

Cathay Pacific Airways Limited

1st Defendant

Veta Limited

2nd Defendant

USA Basing Limited

2nd Defendant (hca 299/2006)

Procedural Posture

Consolidated Employment/contract Actions (preliminary Issues) / Trial of Preliminary Issues; Judgment Delivered

Legal Issues

  1. 1 Whether clause 35.3 (three months notice/payment in lieu) permits employer to bypass contractual disciplinary procedures where the underlying reason for dismissal is alleged misconduct
  2. 2 Whether, once disciplinary procedures have been completed, employer may thereafter terminate by clause 35.3 irrespective of outcome

Ratio Decidendi

Where the true or underlying reason for termination is alleged misconduct, clause 35.3 cannot be used to bypass the contractual disciplinary procedures in Appendix 1; the employer must invoke and complete those procedures (with reasonable expedition) before dismissal takes effect, after which clause 35.3 may be exercised.

Court Disposition

Preliminary issues answered for the Plaintiffs in part: employer may not bypass Appendix 1 by relying on clause 35.3 where the underlying reason is alleged misconduct; employer may terminate after disciplinary proceedings are completed.

Orders

  • Preliminary issues answered as set out in judgment dated 2 March 2009
  • Parties to be heard on costs and consequential orders