John Wallace Dickie And Others v Cathay Pacific Airways Ltd

CourtHigh Court (Hong Kong)
Judgment Date11 Nov 2009
Judgement NumberHCA1405/2006
SubjectCivil Action
HCMP4400C/2001 JOHN SIMPSON WARHAM AND OTHERS v. CATHAY PACIFIC AIRWAYS LTD AND ANOTHER

HCMP 4400/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4400 OF 2001

____________

BETWEEN

JOHN SIMPSON WARHAM
and the other 22 persons listed in the Schedule to the Statement of Claim
Plaintiffs
and
CATHAY PACIFIC AIRWAYS LIMITED 1st Defendant
VETA LIMITED 2nd Defendant

____________

AND

HCA 2822/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2822 OF 2002

____________

BETWEEN

JOHN SIMPSON WARHAM AND OTHERS Plaintiffs
and
CATHAY PACIFIC AIRWAYS LIMITED 1st Defendant
VETA LIMITED 2nd Defendant

____________

AND

HCA 299/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 299 OF 2006

____________

BETWEEN

DAMON NEICH-BUCKLEY 1st Plaintiff
HENDRIK VAN KEULEN 2nd Plaintiff
BRIAN DAVID KEENE 3rd Plaintiff
PIERRE JOSEPH ROGER MORISSETTE 4th Plaintiff
CRAIG MICHAEL YOUNG 5th Plaintiff
and
CATHAY PACIFIC AIRWAYS LIMITED 1st Defendant
USA BASING LIMITED 2nd Defendant

____________

AND

HCA 1405/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1405 OF 2006

____________

BETWEEN

JOHN WALLACE DICKIE 1st Plaintiff
DOUGLAS GAGE 2nd Plaintiff
CHRISTOPHER LEO SWEENEY 3rd Plaintiff
and
CATHAY PACIFIC AIRWAYS LIMITED Defendant

____________

AND

HCA 807/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 807 OF 2007

____________

BETWEEN

GEORGE CROFTS Plaintiff
and
CATHAY PACIFIC AIRWAYS LIMITED 1st Defendant
VETA LIMITED 2nd Defendant

____________

(Consolidated by Order of Master Levy dated 6th day of June, 2008)

Before: Hon Reyes J in Court

Dates of Hearing: 5-7, 9, 12-15 & 23 October 2009

Date of Judgment: 11 November 2009

______________

J U D G M E N T

______________

I. INTRODUCTION

1. The Plaintiffs complain about having been unfairly and wrongfully dismissed from their employment as pilots by the Defendants in July 2001.

2. By the time of the trial, some of the original Plaintiffs had settled with the Defendants. The trial therefore only concerned 18 Plaintiffs. Of those, one (Mr. Gregory Stephen England) had died on 29 January 2002. His claim has been continued by his mother (Ms. Terry Ann England) as personal representative. In this Judgment, I shall use the expression “the Plaintiffs” to refer to the 18 remaining Plaintiffs (that is, including Mr. England as represented by his mother).

3. The Defendants are related companies. Pilots flying planes within the Cathay Pacific network are employed by Cathay Pacific, Veta or USA Basing depending on where they are based. Pilots based in Hong Kong are employed by Cathay Pacific, those in the UK by Veta, and those in North America by USA Basing. For the purposes of these proceedings, the employment contracts (the Conditions) of the pilots employed by each of the 3 companies may be treated as identical. In this Judgment, I shall refer to the Defendants collectively as “Cathay”.

4. Cathay’s case is that the Plaintiffs were dismissed without cause between 9 and 11 July 2001 upon payment of 3 months’ wages in lieu of notice pursuant to the Conditions. Cathay stresses that in these proceedings it does not allege misconduct on the part of any of the Plaintiffs as a ground for termination.

5. But, notwithstanding such disavowal of misconduct, between 9 and 10 July 2001, Mr. Anthony Tyler (then Cathay’s Director of Corporate Development) and Mr. Philip Chen Nan Lok (then Chief Operating Officer and a Director of Cathay) made statements to the public and to Cathay cabin crew in particular which were critical of the Plaintiffs. Those statements accused all the pilots (including the Plaintiffs) whom Cathay had just dismissed of having seriously disrupted Cathay’s operations; of having shown a lack of professionalism in their actions; of “holding Hong Kong to ransom”; and of having failed to act in Cathay’s best interests.

6. The issues which I have to decide may be broadly summarised as follows:-

(1) Unfair dismissal:-

(a) Whether Cathay dismissed the Plaintiffs on account of their membership in the Hong Kong Aircrew Officers Association (the union to which the majority of Cathay’s pilots belonged) and their participation in the union’s activities?

(b) If so, whether the dismissals were unfair?

(c) If the dismissals were unfair, what compensation are the Plaintiffs entitled to receive?

(2) Wrongful termination:-

(a) Whether Cathay terminated the Plaintiffs’ employment contracts on account of misconduct?

(b) If so, whether such terminations were wrongful, especially in light of the “Disciplinary and Grievance Procedures” (DGP) in Appendix 1 of the Conditions. There is no dispute that Cathay was contractually obliged to follow the DGP before dismissing any pilots on disciplinary grounds.

(c) If Cathay was in breach of the DGP, what is the measure of the Plaintiffs’ damages?

(3) Defamation:-

(a) Whether the statements by Mr. Tyler and Mr. Chen were defamatory of the Plaintiffs?

(b) If so, whether Cathay may raise justification and qualified privilege in its defence?

(c) If the statements are defamatory and Cathay has no defence, what damages are the Plaintiffs entitled to in consequence?

II. BACKGROUND

7. The Plaintiffs and their respective positions at the time of their dismissal by Cathay are as follows (listed alphabetically by surname):-

(1) Mr. Campbell Blakeney-Williams, First Officer.

(2) Mr. Kenneth Carver, Senior Captain.

(3) Mr. George Crofts, Captain.

(4) Mr. John Dickie, Senior Captain.

(5) Mr. Gregory England, Junior First Officer (represented by his mother).

(6) Mr. Michael Fitz-Costa, Senior Captain.

(7) Mr. Douglas Gage, Senior Captain.

(8) Mr. Quentin Heron, First Officer.

(9) Mr. Brian Keene, Senior First Officer.

(10) Mr. Pierre Morissette, Senior First Officer.

(11) Mr. Damon Neich-Buckley, Junior First Officer.

(12) Mr. Matthew Rogers, First Officer.

(13) Mr. Michael Steven Shaw, First Officer.

(14) Mr. Christopher Sweeney, First Officer.

(15) Mr. Hendrik Van Keulen, Senior Captain.

(16) Mr. John Simpson Warham, Senior Captain.

(17) Mr. Brett Wilson, First Officer.

(18) Mr. Craig Young, Senior Captain.

8. In July 2001 Cathay dismissed some 49 pilots. The Plaintiffs are therefore sometimes referred to as “49ers”. All the Plaintiffs were union members. Some were more committed and active in relation to union matters than others.

9. Mr. Tyler’s press statement in relation to the sackings is set out in Appendix 1 to this Judgment. The statement was made on 9 July 2001. The statement was accessible by the public on Cathay’s website until 12 September 2009.

10. Mr. Chen’s statements were made on 9 and 10 July 2001.

11. On 9 July 2001 Mr. Chen wrote a letter addressed to Cathay’s flight crew. That letter is set out in Appendix 2 to this Judgment.

12. On 10 July 2001 Mr. Chen publicly stated:-

“[W]e cannot allow this group [that is, the 49 dismissed pilots] to disrupt the airline, its employees, our customers or the reputation of Hong Kong. Nor can we allow this group to let much larger numbers of flight crews who are showing the total professionalism we require -- suffer.”

13. From at least mid-1999 onwards, Cathay’s management and the union had been locked in a dispute over rostering practices and pilots’ contract entitlements. The dispute had reached an impasse in mid-2000 when, from the union’s point-of-view, management was refusing to budge from its stance.

14. In the union’s view, management was running Cathay’s airline network with insufficient capital and staff. Management (the union contended) was seeking to do more and more with less and less.

15. The consequence (as far as the union was concerned) was that pilots were flying longer hours with shorter breaks in between duties. This meant (the union argued) that, in addition to having less time to spend with their families, pilots were experiencing greater and greater levels of stress and fatigue as a result of inadequate rest.

16. The union reasoned that Cathay was only able to operate according to its flight schedules because pilots were prepared to afford a large measure of goodwill to the company. Pilots (according to the union) were routinely performing duties over and above those which they were contractually bound to do under their Conditions.

17. In July 2000, believing that Cathay was abusing pilots’ goodwill by failing to address perceived problems with rostering and by failing to offer better compensation packages for pilots, the union (by a 95% majority) voted to re-instate a “contract compliance” campaign. This essentially entailed a withdrawal of goodwill from the company. In evidence, the Plaintiffs colourfully characterised the campaign as one of WOE (withdrawal of enthusiasm).

18. The campaign was not something new. The union had resorted to similar tactics before, also during difficult negotiations with management. Contract compliance may have been in use as early as 1993. But, regardless of when it actually started, the campaign had been suspended at various times, including in around 1999, whenever it seemed as if negotiations with management might bear some fruit.

19. In July 2000 “contract compliance” came back in force. This time with the object of getting management to the negotiating...

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