Attorney-General v Christine Fleming - [2024] NZCA 92
Date of Judgment
09 April 2024
Decision
Attorney-General v Christine Fleming (PDF 652 KB)
Summary
In CA371/2021, Attorney-General v Fleming, the appeal is allowed and the cross-appeal is dismissed.
In CA742/2021, Attorney-General v Humphreys, the appeal is allowed in part.
Employment Law. Definition of homeworker. Definition of work. Personal grievance. Penalty.
These appeals concern the basis on which the care of adult disabled people by family members has been funded since 2013. Ms Fleming and Mr Humphreys both care for their adult disabled children. Since 2013, they have received funding to do so in different forms. They each brought proceedings seeking declarations that they are employees of the Ministry of Health (MOH) in relation to the care they provide. In addition, Ms Fleming advanced a personal grievance claim, seeking back pay, compensation and interest, and the imposition of a penalty on the Crown for breaches of its statutory obligations and the asserted employment agreement. The Employment Court held that Ms Fleming and Mr Humphreys were both employees of the MOH and made declarations to that effect. However, it declined to award compensation to Ms Fleming and declined to impose a penalty on the Crown. The Crown appealed both decisions. Ms Fleming cross-appealed.
On the agreed issues for determination the Court concluded:
(a) Was Ms Fleming a “homeworker” as defined by s 5 of the ERA, and therefore an employee of the MOH, when she cared for her son?
Ms Fleming was not a “homeworker” as defined by s 5 of the ERA when she cared for Mr Coote.
(b) Was the Employment Court wrong in finding that the “well-established test for what constitutes work” as set out in Idea Services applies to Ms Fleming?
The Employment Court erred in finding that the “well-established test for what constitutes work” as set out in Idea Services applied to Ms Fleming.
(c) Did the Employment Court err in finding that Ms Fleming had a personal grievance for discrimination?
The Employment Court erred in finding that Ms Fleming had a personal grievance.
(d) Did the Employment Court err in finding that the MOH was not permitted under a family care policy or expressly authorised under any enactment to pay Ms Fleming for work she did during the time of pt 4A of the PHDA?
Part 4A precluded Ms Fleming from recovering arrears of wages and holiday pay.
(e) Did the Employment Court err in failing to consider the imposition of a penalty under s 134 of the ERA?
The Employment Court did not err in failing to consider the imposition of a penalty under s 134 of the ERA.
(f) What is the level of knowledge required to establish a breach of an employment agreement for the purposes of s 134 of the ERA?
It has proven unnecessary to consider this question.
(g) Did the Employment Court err in its assessment of the effect of pt 4A and s 88 of the PHDA on its ability to assess the employment relationship under the FFC scheme?
The Employment Court did not err in its assessment of the effect of pt 4A and s 88 of the PHDA on its ability to assess the employment relationship under the FFC scheme.
(h) Was Mr Humphreys a “homeworker” as defined by s 5 of the ERA, and therefore an employee of the MOH when he cared for his daughter during (i) the FFC period (April 2014 to August 2020) and (ii) the IF period (August 2020 onwards)?
Mr Humphreys (i) was a homeworker as defined in s 5 of the ERA and therefore an employee of the MOH when he cared for Ms Humphreys during the FFC period and (ii) was not a homeworker as defined in s 5 of the ERA when he cared for Ms Humphreys during the IF period.
(i) Was the Employment Court wrong in finding (if it did) that this Court’s approach in Idea Services applies to an assessment of hours worked by Mr Humphreys as a homeworker for (i) the FFC period and/or (ii) the IF period?The Employment Court was wrong in finding (if it did) that this Court’s approach in Idea Services applies to an assessment of hours worked by Mr Humphreys as a homeworker for the FFC and/or IF periods.
The Court made no order as to costs.
In CA742/2021, Attorney-General v Humphreys, the appeal is allowed in part.
Employment Law. Definition of homeworker. Definition of work. Personal grievance. Penalty.
These appeals concern the basis on which the care of adult disabled people by family members has been funded since 2013. Ms Fleming and Mr Humphreys both care for their adult disabled children. Since 2013, they have received funding to do so in different forms. They each brought proceedings seeking declarations that they are employees of the Ministry of Health (MOH) in relation to the care they provide. In addition, Ms Fleming advanced a personal grievance claim, seeking back pay, compensation and interest, and the imposition of a penalty on the Crown for breaches of its statutory obligations and the asserted employment agreement. The Employment Court held that Ms Fleming and Mr Humphreys were both employees of the MOH and made declarations to that effect. However, it declined to award compensation to Ms Fleming and declined to impose a penalty on the Crown. The Crown appealed both decisions. Ms Fleming cross-appealed.
On the agreed issues for determination the Court concluded:
(a) Was Ms Fleming a “homeworker” as defined by s 5 of the ERA, and therefore an employee of the MOH, when she cared for her son?
Ms Fleming was not a “homeworker” as defined by s 5 of the ERA when she cared for Mr Coote.
(b) Was the Employment Court wrong in finding that the “well-established test for what constitutes work” as set out in Idea Services applies to Ms Fleming?
The Employment Court erred in finding that the “well-established test for what constitutes work” as set out in Idea Services applied to Ms Fleming.
(c) Did the Employment Court err in finding that Ms Fleming had a personal grievance for discrimination?
The Employment Court erred in finding that Ms Fleming had a personal grievance.
(d) Did the Employment Court err in finding that the MOH was not permitted under a family care policy or expressly authorised under any enactment to pay Ms Fleming for work she did during the time of pt 4A of the PHDA?
Part 4A precluded Ms Fleming from recovering arrears of wages and holiday pay.
(e) Did the Employment Court err in failing to consider the imposition of a penalty under s 134 of the ERA?
The Employment Court did not err in failing to consider the imposition of a penalty under s 134 of the ERA.
(f) What is the level of knowledge required to establish a breach of an employment agreement for the purposes of s 134 of the ERA?
It has proven unnecessary to consider this question.
(g) Did the Employment Court err in its assessment of the effect of pt 4A and s 88 of the PHDA on its ability to assess the employment relationship under the FFC scheme?
The Employment Court did not err in its assessment of the effect of pt 4A and s 88 of the PHDA on its ability to assess the employment relationship under the FFC scheme.
(h) Was Mr Humphreys a “homeworker” as defined by s 5 of the ERA, and therefore an employee of the MOH when he cared for his daughter during (i) the FFC period (April 2014 to August 2020) and (ii) the IF period (August 2020 onwards)?
Mr Humphreys (i) was a homeworker as defined in s 5 of the ERA and therefore an employee of the MOH when he cared for Ms Humphreys during the FFC period and (ii) was not a homeworker as defined in s 5 of the ERA when he cared for Ms Humphreys during the IF period.
(i) Was the Employment Court wrong in finding (if it did) that this Court’s approach in Idea Services applies to an assessment of hours worked by Mr Humphreys as a homeworker for (i) the FFC period and/or (ii) the IF period?The Employment Court was wrong in finding (if it did) that this Court’s approach in Idea Services applies to an assessment of hours worked by Mr Humphreys as a homeworker for the FFC and/or IF periods.
The Court made no order as to costs.