Doctors claim court win in compensation row
Nick Gentle, Anita Lam and Kelly Chan
Hospital Authority doctors were claiming a minor victory yesterday after the Court of Appeal ruled they could claim compensation for hours they worked while on call during rest days and holidays.
But one doctor - whose claims add up to almost HK$23 million - said the ruling did not go far enough and he would take it to the Court of Final Appeal.
The ruling expands on a decision by Mr Justice William Stone in the Court of First Instance in March last year that doctors could be paid for time in lieu - resulting in an estimated payout of HK$600 million.
Of the authority's 4,600 doctors, 95 per cent agreed to a settlement package.
But 165 doctors challenged Mr Justice Stone's decision, arguing they should be compensated for every hour they spent on call, whether they were at a hospital or elsewhere.
Including overtime, the initial claims of just one of the doctors, Leung Ka-lau - a former head of the Public Doctors' Association - added up to 3,757 eight-hour days off, or HK$22,846,542.
The court agreed with Mr Justice Stone that a doctor was not 'at work' when he was on call outside the hospital. However, it did not agree that an 'on-call' doctor who gave brief advice over the phone could not in general be said to be working.
'Whether the giving of brief telephonic advice without returning to the hospital constitutes 'work' is, in my view, a fact-sensitive matter,' said Mrs Justice Doreen Le Pichon. 'If the advice rendered amounts to 'actual provision of primary care services', it would constitute work.'
Beyond that, the court also found that requiring a doctor to be on call during a rest day was technically a breach of the Employment Ordinance as they were not entitled to refuse to work while they were on call.
The same could be said of instances where doctors were on call during statutory and public holidays, Mrs Justice Le Pichon said. So the doctors could claim compensation for the actual hours worked on those rest days that they were on call.
But Mr Justice Wally Yeung Chun-kuen said he found the assertion that doctors who were on call outside the hospital might somehow be entitled to up to 16 hours time in lieu 'startling' and 'unfounded'.
The court also dismissed a claim for overtime payments to be made instead of time in lieu. It said that many doctors had renounced their claim to extra overtime payments by signing up for a fixed rate honorarium of HK$3,500 being added to their pay.
Madam Justice Maria Yuen Ka-ning said that once the honorarium had been accepted, the entitlement for time in lieu for overtime worked was extinguished.
Authority chairman Anthony Wu Ting-yuk and chief executive Shane Solomon said they would review the doctors' working hours.
Dr Leung described the ruling as a step forward and said that, in future, he would stop accepting the honorarium. But it did not go far enough, and he would take it to the top court.