Cases of interest: August 2017

A summary of interesting or topical employment cases.

Lowe v Director-General of Health, Ministry of Health [2017] NZSC 115

Supreme Court - Whether relief carer meets definition of ‘homeworker’

The Ministry of Health and District Health Boards (DHB) ran a scheme called Carer Support. The scheme provided respite for primary carers of disabled or elderly people by enabling them to obtain the services of relief carers. The Ministry and DHB would either reimburse or subsidise the primary carer for the amount paid to the relief carer or, alternatively, pay the relief carer directly.

At issue was the employment status of the appellant, a relief carer. In particular, whether she came within the definition of “homeworker” in s 5 (external link) of the Employment Relations Act 2000 (ERA). If she did, then she would be classed as an employee of the Ministry or the DHB under s 6(1)(b) (external link) of the ERA.

The majority held that the appellant was not a homeworker and therefore not an employee. The majority’s reasons varied.

Arnold and O’Regan JJ held that the appellant was not a homeworker because the Ministry and DHB did not directly engage her to do work for them (see para 71). They held that engagement requires an event to occur which creates a relationship between the hirer and the person being engaged (see para 63). This was lacking because neither the Ministry nor the DHB had a role in selecting relief carers (see para 65).

Young J held that the appellant was not a homeworker because her provision of relief care was not in the course of the Ministry or the DHB’s “trade or business” and the relief care she carried out was not “for” the Ministry or DHB (see para 85).

Link to case (external link)

Fraser v McDonald's Restaurants (New Zealand) Ltd [2017] NZEmpC 95

Employment Court - Meaning of availability provision - Section 67D of Employment Relations Act 2000

At issue was whether the individual employment agreements in question contained an availability provision per s 67D of the Employment Relations Act.

Under the roster arrangements, the employees nominated their availability rather than being asked to meet the employer’s unilaterally stated expectations as to when the employees should be available. The employment agreement stated that employees would be rostered according to their availability but from time to they may be “requested” to work additional hours (see para 20-21).

The employees had been offered hours in addition to their nominated hours and turned them down. The employer did not penalise the employees for refusing to work additional hours (see para 25-26).

The Court held that the employees’ shifts were to be “negotiated under a genuine consensus process”. The word “request” in the employment agreement meant the employees could be asked, but not compelled, to be available for hours beyond their guaranteed hours (see para 58).

The Court held that the possibility of employees being able to arrange substitutes to work their shifts benefited the employees as much as it did the employers. There was no disproportionate advantage to the employers (see para 59).

The Court concluded that there was no availability provision.

Link to case (external link)

Nel v ASB Bank Limited [2017] NZEmpC 97

Employment Court - What constitutes disparity of treatment

The employee claimed unjustified dismissal on various grounds including disparity of treatment. The employee was dismissed after making romantic advances towards a subordinate colleague. The employee alleged the working environment was “generally relatively smutty” and highlighted previous incidents of drug-taking, bullying and crude sexual remarks to a customer where no disciplinary action was taken.

The employer sought to strike out the employee’s disparity of treatment pleadings. It claimed the examples of disparity provided were not “truly parallel” or “substantially similar” to the employee’s circumstances. This was the standard used in United Kingdom Employment Appeal Tribunal case Hadjioannou v Coral Casinos Ltd [1981] IRLR 352, an extract of which was cited in by the New Zealand Court of Appeal in Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767.

The Employment Court held that it was unlikely that the Court of Appeal in Buchanan intended to implicitly approve the descriptors of “truly parallel” and “substantially similar”: (see para 37).

The Court held that an analysis of parity of treatment is necessarily case-specific involving questions of fact and degree (see para 40). Because of this the Court held it was not necessary or desirable to define what constitutes disparity: (see para 47).

However, the Court provided the following guidance: (para 52).

“[W]hen making a disparity assessment, it will be necessary to consider whether the comparative conduct is sufficiently similar. Consideration should be given to all relevant circumstances, including context. The assessment will be case-specific. The analysis is for the purpose of determining whether the dismissal or other steps taken meets the statutory test of justification under s 103A of the Act.”

The Court went on to dismiss the strike out application on the grounds it could not be certain the allegations could not possibly succeed.

Link to case (external link)

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