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'Sleepovers' case relevant for on-call employees

Some of you may remember the case of Dickson v Idea Services Limited. This case had a profound impact on New Zealand employment law. Philip Dickson was a community support worker who performed ‘sleepovers’ caring for people with disabilities in community homes.

sleeping in cubicleHis case went all the way to the Court of Appeal, which held that Mr Dickson’s ‘sleepovers’ constituted work and that he was entitled to receive at least the minimum wage for every hour he was on site.

The reach of the Dickson case has now been put to the test in a recent matter before the Employment Relations Authority.

Keith Hill was employed by Peter Shand to manage the Murchison Camping Ground in December 2010. While there was no written employment agreement, Hill and Shand had verbally agreed he would be paid a flat annual salary of $30,000. He was also given free accommodation in a house on the camp site.

In his role as Camp Manager, Hill was required to keep the camp open and be on site 365 days a year. During peak times (December – April), he performed his core duties between 7 am and 11 pm. Hill however could be called upon during the night. Campers could check-in throughout the night and unexpected emergencies arose from time to time. Hill therefore had to remain vigilant, even while asleep, and be ready to respond at any time.

In January 2013, Hill was given notice that he was being dismissed, effective from 3 February 2013. No reason for the dismissal was given at the time, though Shand later claimed that Hill had taken money from the camp’s bank accounts.

Unsurprisingly, Hill was aggrieved by his dismissal and took his case to the Employment Relations Authority.

Hill brought two claims – first that he was unjustifiably dismissed, and second, that he was paid below the minimum wage.

The unjustified dismissal claim was straightforward. Shand had failed to follow any semblance of an investigation in deciding to dismiss Hill. But more importantly, there was no shred of evidence to suggest that Hill had taken any money from the camp’s bank accounts.

The question of whether Hill had been underpaid was more complicated and meant the Authority had to determine exactly when Hill worked so it could decide whether he was underpaid.

It was accepted by all parties that during the off-peak period Hill worked eight hours a day, seven days a week. The dispute was then over the hours he worked during peak periods.

Hill relied on the Dickson case and tried to argue that he worked 24 hours a day, seven days a week, due to being on call every evening.

The Authority accepted that Hill was required to remain alert and respond to arrivals or emergencies during the evenings.  The Authority also noted that Hill had his own private lodgings, was able to entertain friends, could watch whatever he wanted on TV, and was ultimately not responsible for the physical and emotional welfare of campers. Moreover, Hill’s presence at the camp site during the evenings, while a bonus, was not an absolute necessity.

The Authority therefore determined that while Hill did work for 15 hours each day during peak season, he did not work between the hours of 11pm and 7am. This might not have been what Hill wanted, however it still meant that his $30,000 salary was below the minimum wage. The Authority therefore ordered that Shand pay Hill the shortfall of $69,561.25, as well as other more modest remedies for the dismissal.

What employers should take away from Hill’s case is that the Dickson decision has its limits, and just because an employee is on-site and on-call during the evening does not necessarily mean that they are working. However, employers do need to be mindful of the Dickson decision and to take steps to ensure that employees are adequately remunerated for the time they work.