Idea Services Ltd v Dickson - [2011] NZCA 14

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA405/2010 [2011] NZCA 14

BETWEEN IDEA SERVICES LIMITED Appellant

ANDPHILLIP WILLIAM DICKSON Respondent

Hearing: 28 October and 13 December 2010

Court: Chambers, Randerson and Stevens JJ

Counsel: C H Toogood QC and N K Dines for Appellant
P Cranney, S Mitchell and A J Connor for Respondent
D B Collins QC, Solicitor-General, J Holden (on 28 October 2010)
and E J Child (on 13 December 2010) for the Intervener, the Attorney- General

Judgment: 16 February 2011 at 4 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellant must pay the respondent costs for a complex appeal on a band A basis, plus usual disbursements. We certify for second counsel.

REASONS OF THE COURT

(Given by Chambers J)

Sleepovers

[1] Idea Services Ltd, the appellant, employs Phillip Dickson, the respondent, as a community service worker. Mr Dickson in this role provides care and support for
people with disabilities who live in community homes. He is sometimes required to

IDEA SERVICES LIMITED V PHILLIP WILLIAM DICKSON CA CA405/2010 [16 February 2011]

do what the parties call ―sleepovers‖. On sleepovers, Mr Dickson is required to be at the community home overnight so that he can be on hand to deal with any issues that arise during the course of the night.

[2] Under Mr Dickson’s employment contract, he is paid $34 per sleepover, plus his ordinary hourly rate of $17.66 for any time he is required to spend actively tending to the needs of the occupants of the home during the night. If there are no incidents during the sleepover, Mr Dickson simply receives the $34. This works out as between $3.40 and $4.30 an hour, depending on the length of the sleepover.

[3] Mr Dickson filed proceedings in the Employment Relations Authority, claiming he was entitled to be paid the minimum hourly wage prescribed under the Minimum Wage Act 1983 in respect of every hour he was rostered on a sleepover. The Employment Relations Authority upheld his claim.1 Idea Services filed a challenge in the Employment Court, seeking a de novo hearing of the matter. A Full Court, comprising Chief Judge Colgan and Judges Travis and Couch, heard the case.
They agreed with the Authority that these sleepovers constitute ―work‖ for the purposes of the 1983 Act with the consequence that the minimum rate of pay prescribed in the relevant Minimum Wage Orders applied to them.2 Mr Dickson therefore was entitled to the minimum wage for the entire period of the sleepover. The minimum wage at the time of that hearing was $12.50 an hour. Whether the Employment Court erred in law in its approach to this question is the first issue on this appeal.

[4] Idea Services had a backup argument on which the Employment Court delivered judgment later. Idea Services argued that the 1983 Act was breached only if an employee’s average rate of pay over a pay…

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 Idea Services Ltd v Dickson

Details

AGLC: Idea Services Ltd v Dickson [2011] NZCA 14
Case: [2011] NZCA 14
Decision Date: 16 February 2011

CaseChat Overview and Summary

The Court of Appeal considered an appeal by Idea Services Limited against an Employment Court decision that sleepovers constituted work for the purposes of the Minimum Wage Act 1983. Phillip Dickson, an employee of Idea Services, claimed he was entitled to the minimum wage for every hour he spent on a sleepover. The Employment Court found in his favour, but Idea Services argued that the Act permitted averaging over an entire pay period and that the Court had wrongly considered whether sleepovers constituted work. The Court of Appeal dismissed the appeal, finding that sleepovers constituted work and that the Act required workers to be paid the minimum wage for every hour worked. The Court of Appeal endorsed the Employment Court’s approach to determining whether sleepovers constituted work, finding it was not necessary to provide an exhaustive definition of work. The Court of Appeal rejected Idea Services’ argument that the Act permitted averaging, finding that the Act required the minimum wage to be paid for every hour worked. The Court of Appeal considered the legislation’s purpose, finding that while it was intended to ensure a minimum standard of living, it also aimed to counter exploitation of vulnerable workers. The Court of Appeal considered hypothetical scenarios suggested by the Attorney-General, finding that it was not necessary to resolve the issue of whether averaging was the norm prior to the Employment Court’s decision.

Orders