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Attorney-General v Fleming

Attorney-General v Fleming

Case [2021] NZCA 510 6 October 2021

Employment & Labour Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA371/2021
[2021] NZCA 510

BETWEEN	ATTORNEY-GENERAL Appellant
AND	CHRISTINE FLEMING Respondent

Court:	Brown and Courtney JJ
Counsel:	S V McKechnie and T J Bremner for Appellant P J Dale KC for Respondent
Judgment: (On the papers)	6 October 2021 at 9.30 am
Reissued:	22 November 2022

JUDGMENT OF THE COURT

AThe Attorney-General’s application for leave to appeal is granted.
BMs Fleming’s application for leave to cross-appeal is granted:
(a) on the first question as sought; and
(b) on the second ground as the questions stated at [27].

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

The Attorney-General (sued on behalf of the Hon Andrew Little in his capacity as Minister of Health) and Christine Fleming apply, respectively, for leave to appeal and to cross-appeal a decision of the Employment Court.[1] The decision determined Ms Fleming’s claim that, in caring for her disabled adult son, she was an employee of the Ministry of Health and entitled to greater remuneration than the available funding models provided.
[1]Fleming v Attorney-General [2021] NZEmpC 77, [2021] ERNZ 279.
The applications for leave are brought under s 214(3) of the Employment Relations Act 2000 (ERA) which provides that:
The Court of Appeal may grant leave accordingly if, in the opinion of that court, the question of law involved in that appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
The Attorney-General has identified three grounds on which it wishes to appeal. Ms Fleming consents to the Attorney-General’s application for leave to appeal on those grounds. Ms Fleming wishes to cross-appeal on two grounds. The Attorney‑General consents to the first but opposes leave being granted in respect of the second.

The Employment Court’s decision

Ms Fleming’s son, Justin, was born with severe physical and mental disabilities. He is now 40 years old. He cannot be left alone and requires constant supervision, as well as daily care needs met. Ms Fleming has cared for him throughout his life. For financial support Ms Fleming depended on a benefit from the Ministry of Social Development. She elected not to seek support through the Funded Family Care model introduced in 2013 (or through the alternative, Individualised Funding) under which funding could be provided to enable a person with high or very high needs (which Justin was) to be cared for by a family member.
Ms Fleming chose to remain on a benefit rather than seek funding under the alternative models because she (apparently mistakenly) believed remaining on the benefit alone would make her better off financially and because of the uncertainties inherent in the funding models for a person in her situation. In particular, Funded Family Care was capped at 40 hours a week and purported to impose on the disabled person and their caregiver an employment relationship under which the caregiver was employed by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Fleming

Details

AGLC: Attorney-General v Fleming [2021] NZCA 510
Case: [2021] NZCA 510
Decision Date: 6 October 2021 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for leave to appeal and cross-appeal in the case of Attorney-General v Fleming. The Attorney-General sought leave to appeal the Employment Court's decision that Christine Fleming was an employee of the Ministry of Health when she cared for her disabled adult son and was entitled to greater remuneration than the available funding models provided. Ms Fleming sought leave to cross-appeal on two grounds, with the Attorney-General opposing leave in respect of the second ground. The Court of Appeal granted leave to both the Attorney-General and Ms Fleming to appeal and cross-appeal on the specified grounds.

The legal issues the Court of Appeal had to decide included whether Ms Fleming was a "homeworker" as defined by the Employment Relations Act 2000 (ERA) and therefore an employee of the Ministry of Health when she cared for her son. The Court also had to consider whether the Employment Court erred in finding that the well-established test for what constitutes work applies to Ms Fleming as a homeworker. Another issue was whether the Employment Court erred in finding that Ms Fleming had a personal grievance for discrimination.

The Court of Appeal found that the questions of law involved in the appeal and cross-appeal were of general and public importance and should be submitted to the Court of Appeal for decision. The Court granted leave to the Attorney-General to appeal on the proposed questions of law, and leave to Ms Fleming to cross-appeal on the first ground sought. In respect of the proposed second ground, leave to cross-appeal was granted on the following questions: (a) Did the Employment Court err in failing to consider the imposition of a penalty under s 134 of the ERA? (b) What is the level of knowledge required to establish a breach of an employment agreement for the purposes of s 134?

The Court also considered administrative issues, such as the request from Ms Fleming to resolve the outstanding quantum and costs issues in the Employment Court before the appeal and cross-appeal are heard. The Court declined to make a direction of the kind suggested and noted that steps will be taken to ensure a hearing date is allocated as promptly as possible.

Orders