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Should I be paid if I work on my rest day?
Should I be paid if I work on my rest day?
2019-02-25
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Whenever the flu season approaches, medical resources were always outstretched to a point where medical professions had no way to take their day off as their duty matters to life and death.
There was a case, in which Dr Leung, a hospital doctor, filed his claim to the Labour Tribunal against the employer, The Hospital Authority (HA), for a compensation for being on call beyond their normal working hours, which subsequently ended up in the Court of Final Appeal (CFA).
Entitlement for a rest day
All full-time employees in Hong Kong are entitled to one rest day (Any continuous period of not less than 24 hours) in every seven-day period in addition to statutory holidays, alternative holidays or substituted holidays.
However, due to the shift taking nature of public hospital doctors, the issue of rest days is not as straightforward.
On-call duties for doctors give rise to a number of different legal issues, depending, for example, on whether a rest day is involved.
The HA has a system of putting doctors on an "on-call" roster in order for them to be able to respond, if necessary, to patients' needs outside normal working hours. Doctors placed on the "non-resident call" list do not have to stay at the hospital but may be called back at any time.
Doctors on non-resident call has to follow these restriction
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Remain close enough to the hospital to be able to get there within 30 minutes
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Not allowed to consume alcohol
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Mentally prepared to respond if called
Given these restrictions, the CFA ruled that a day on which a doctor is on non-resident call cannot qualify as a rest day under the Employment Ordinance.
The court found that since a doctor on non-resident call is not entitled to abstain from working for the HA for a continuous 24-hour period, such a day cannot qualify as a rest day. The position remains the same if the doctor is not in practice required to treat a patient during an on-call day.
Compensation for working on a rest days
The CFA judgment focused only on the non-resident call scenario as it was accepted that doctors on resident call duty were clearly entitled to compensation.
The CFA's view was that doctors who miss a rest day are subject to "a real and substantial loss" and that they should be granted an alternative day off. If this option is not practical, they should be entitled to substantial damages equivalent to a full day's wages.
The Court made it clear that doctors are entitled to monetary compensation for the entire day that they are on call, even if they are not actually required to provide their professional services on that day. The possibility that they may be asked to do so is sufficient.
Right & entitlement to a rest day in Hong Kong
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An employee employed under a continuous contract is entitled to not less than one rest day in every period of seven days.
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A rest day is defined as a continuous period of not less than 24 hours during which an employee is entitled to abstain from working for his employer.
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Rest days are in addition to statutory holidays, alternative holidays or substituted holidays.
Disclaimer: This article serves as the provision of general information and reference only. It is not intended to be served or interpreted as any legal advice in any occasion, at any cost. Please seek professional help if you have any relevant legal issue.
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