The last episode in the saga of Dickson v Idea Services Ltd happened just last week with the Court of Appeal unanimously dismissing an appeal from the Employment Court.
To just briefly summarise the facts:
Mr Dickson is a community service worker and looks after disabled people living in community homes. In his role he sometimes has to do “sleepover”, meaning he has to stay overnight on site and be available if needed. He might be able to sleep the night, but it’s also possible that he is awoken frequently and has to do his job, i.e. attend to the needs of his patients. The dispute is about the allowance he receives for these sleepover, which is just $34 if nothing happens and plus $17,66 ph if he has to actively spend any time caring for his patients. Obviously, if nothing happens and he only receives $34 for the night, that is well below the minimum wage of currently $12,75ph.
Mr Dickson claimed that the time spent on site during sleepover constitutes work and that therefore he must be paid the minimum hourly rate. His employer, Idea Services, claimed the opposite and also argued that because Mr Dickson worked many shifts during a fortnightly pay period, his wages should be looked at a whole and that on “average” he was paid the minimum wage.
Now, the parties litigated up the court hierarchy with the employer consistently losing in every instance. The Court of Appeal decision is, astonishingly, a very short one, confirming in every point the affirmative Employment Court decision that yes, sleepovers are work. All of this can hardly come as a surprise and the arguments of the Court(s) are sound and convincing. Essentially, three factors are determinative when it comes to ‘work’:
– what constraints are placed on the freedom of the employee
– what are his responsibilities
– what is the benefit to the employer.
As Mr Dickson had to stay on site and be available any time, the constraints on his freedom were considerable. He was also responsible for the safety of all the residents and the benefit for the employer was substantial – as the Court noted, the home could not function without employees like Mr Dickson. Very similar to on-call doctors who spend the night at the hospital (European Court of Justice confirmed they do work) or night watchmen ( Scotland Courts decided they work).
The Court also rejected the ‘averaging’ argument. The legislation refers to $x per hour – not $x per hour on average. If averaging were the right approach, the employee’s minimum pay would depend on the pay period. In other words, the employer could determine the minimum pay by changing the work period for its employees.
There are a number of other, more or less interesting arguments the Court dealt with and the judgment makes it clear that the hearings must have been quite an intriguing affair, with both sides arguing quite skillfully. But, honestly, there could have never been any other outcome.
And that’s is why this litigation has been drawn out for so long as a (final) judgment in Mr Dickson’s favour means the employer is liable for a huge amount of backpay. And not only this employer – a whole industry has watched this litigation from the sidelines and with the CA confirming what every employment lawyer predicted, calls for the Government to change the law are becoming louder.
We will see what happens now – my guess is that the law is gonna change, Hobbit – legislation part 2 coming up…
The full judgment can be found here: