The Supreme Court has sided with the Ministry of Health and Capital and Coast District Health Board in a split decision over whether a former relief caregiver should have been paid minimum wage instead of a flat fee.
Justices Mark O’Regan, Terrence Arnold and William Young Monday rejected Janet Lowe’s appeal that relief caregivers are employees and as such entitled to the minimum wage, rather than a flat fee.
The case was being closely watched given about 30,000 largely female relief workers were paid $75 for a 24-hour shift to give full-time carers a break over the years.
Justices O’Regan and Arnold found that the engagement by the ministry and DHB was with the primary caregivers rather than the relief workers.
This could not be extended “to the extent that it applies in circumstances where the person said to be the hirer is not even aware of an engagement having taken place until after the initial period of care has concluded”.
The Employment Court held that Ms Lowe was a home worker under the Employment Relations Act, meaning she was an employee and entitled to the minimum wage, holiday pay and other protections under the law. The Court of Appeal overturned that decision last June.
Chief Justice Sian Elias and Justice Susan Glazebrook formed a different view and would have allowed the appeal because “the ministry and the DHB clearly promise in the claim form to pay if the full-time carer does not,” they said in their opinion.
Finally, that it may be inconvenient or expensive to give carers like Ms Lowe the rights to which she is entitled is not a reason to read down the definition of home worker, they said. NZN