Sleeping on the Job - Is it "Work"?
A recent case has drawn media attention due to the finding by the Court of Appeal that a disability services worker, sleeping over at a community home, was entitled to receive at least the minimum wage whilst sleeping. Here’s an outline of the case – what do you think?
Mr Dickson worked for Idea Services Limited as a community service worker providing care and support to people with disabilities who live in community homes. A requirement of his position was that Mr Dickson sleep overnight in the home so that he could deal with any issues that arose during the night and for security purposes. He was paid $34.00 per sleepover, and $17.66 per hour for any time during which he was required to be actively working and tending to the needs of the residents. If there were no incidents during the night Mr Dickson would receive $34.00, which amounted to between $3.40 and $4.30 per hour depending on the length of the sleepover.
Mr Dickson claimed that he was entitled to the minimum wage prescribed under the Minimum Wage Act 1983 (“the Act”) for every hour of his sleepover. This claim was upheld at both the Employment Relations Authority and the Employment Court.
The Court of Appeal was required to consider whether sleepovers constitute “work” for the purposes of section six of the Act, which states:
“Every worker who belongs to a class of workers in respect of whom a minimum rate of wages has been prescribed under this Act, shall be entitled to receive from his employer payment for his work at not less than that minimum rate.”
The Court of Appeal agreed that three factors must be considered in order to determine whether the sleepover constituted “work”:
- the constraints placed on the employee’s freedom to do as he or she pleases;
- the nature and extent of responsibilities placed on the employee; and
- the benefit the employer receives from having the employee perform the role.
Mr Dickson had significant restraints placed on him when sleeping over, important responsibilities that he had to attend to with respect to both the home and the residents, and the employer derived a correspondingly significant benefit. The Court of Appeal therefore agreed that in this instance all of these factors applied to a significant degree and therefore Mr Dickson’s sleepovers constituted work for the purposes of the Act. Mr Dickson was therefore entitled to receive the minimum wage during his sleepover at the community home.
The Court of Appeal rejected Idea Services Limited’s alternative argument that the Act was breached only if the employee’s average rate of pay over a pay period was less than the prescribed minimum.
This decision will have a great impact on the disability services sector. Ralph Jones, Chief Executive of Idea Services Limited, is quoted as saying this decision would cost the organisation about $176 million in back payments. Idea Services Limited lodged an application for an appeal against the Court of Appeal decision, and the outcome is likely to be newsworthy.
“I have struggled with different legal firms over the years, but over the past few years I have engaged with Turner Hopkins with various requirements from personal relating to wills, family trust, property settlements and contracts through to commercial engagements including employment advice, commercial lease agreements and general legal advice. I have engaged with a number of the people in the firm and always found them professional, punctual in their responses and very sound in the advice provided.”
“To Michael Robinson – I wanted to thank you and your colleagues for many years of excellent service to the Bank. You have an outstanding business that has proved to be one of the most reliable and ethical businesses that Collections have dealt with in the almost 9 years I was with the Bank.”
“John is very easy to talk to, he never makes you feel dumb, and never makes you feel like you are wasting his time for asking questions. He explains everything very clearly, every time. John's support staff are also very efficient and so easy to deal with. No detail is missed when dealing with them. My husband and I are fans of them all :)”
“I can't speak highly enough of Jenny. She got everything done in a timely manner and when my ex-husband threw a spanner in the works at the eleventh hour she got the required documentation to his lawyers and settlement back on track.”
“Joy, we cannot thank you enough for your help with our purchase! You have been wonderful to deal with and so proactive (and patient with my numerous emails). We will be visiting NZ in April so will make sure we drop in to thank you in person.”