Family caregiver found to be Ministry of Health employee

7 Jul 21

The Employment Court reinforces the personal nature of employment obligations and its power to determine whether a person is in an employment relationship in Fleming v Attorney-General.

In this case the Employment Court issued a judgment considering the employment status of parents acting as fulltime caregivers for their adult children as well as the identity of the employer.

Ms Fleming was the primary caregiver for her severely mentally and physically disabled son, Justin Cootes.

One of the support mechanisms available to Ms Fleming was Family Funded Care (FFC) and its successor Individualised Funding (IF). Under FFC and IF, a person with high needs could apply for funding of up to 40 hours per week to enable a family caregiver to provide care for them.

FFC and IF purported to impose an employment relationship on the family caregiver (as the employee) and the disabled person (as the employer). It was acknowledged in evidence that part of the reason for this model was to avoid the Ministry taking on a significant number of employees.

Ms Fleming was assessed for this funding. The assessment found that while Mr Cootes required 24 hour supervision, the level of funding available would be 15 hours per week (later increased to 22 hours) to cover personal care tasks and household management tasks. In light of this assessment Ms Fleming chose not to proceed with the application.

Ms Fleming considered that the reality of her position was that she was an employee of the Ministry of Health. She had been working providing care to Mr Cootes for an extended period of time, the Crown was aware she had been doing the work, the work was for the Crown’s benefit and she was entitled to be remunerated for it.

The Crown considered that the Court did not have jurisdiction to enter into inquiries into the requirement for an employment relationship by the policies. Further it considered there was no basis for finding an employment relationship between the Ministry and a family caregiver.

Jurisdiction to assess the employment relationship

The Employment Court has exclusive jurisdiction to make a declaration as to whether a person is an employee and (by implication) of whom.

While the Court found that it had no jurisdiction to consider the lawfulness of the FFC and IF policies, it did have jurisdiction to determine whether a person is in an employment relationship when they have accepted funding under FCC or IF.

It considered that statutory limitations on access to funding in the Health and Disability Act did not exclude its jurisdiction to determine employment status but did limit the remedies available.

It considered that if Parliament had intended to limit the Court’s exclusive jurisdiction in respect of family caregivers it would have done so through an express legislative amendment (as it has with sharemilkers and film workers).

Capacity to enter an employment relationship

The Court found that, absent an express statutory provision, it was not possible for Mr Cootes to enter into a binding employment relationship with his mother due to lack of capacity.

It found that while many disabled people were perfectly capable of undertaking the role of employer, Mr Cootes was not one of them. Nor did it consider that this could be remedied by having an advocate, welfare guardian or circle of support to assist him in fulfilling his responsibilities.

Ministry of Health the employer

The Court went on to find that Ms Fleming was a homeworker as defined in s 5 of the Employment Relations Act.

The key question considered by the Court was whether Ms Fleming was “engaged” by the Ministry of Health. The Court considered that the meaning of engaged for the purposes of s 5 is substantially affected by context.

The Court found that the Ministry had an obligation to support people like Mr Cootes to stay in the community and lead a full and active life. The Ministry knew that Mr Cootes required care and that Ms Fleming provided that care. The Ministry periodically checked in with Ms Fleming to ensure the caregiving work was still being done and to an adequate standard. Ms Fleming’s work benefitted the Ministry and would otherwise have had to be done by other means.

The Court found Ms Fleming to be a homeworker from at least the point in time that Mr Cootes became an adult; the Ministry was aware he needed care and that Ms Fleming was providing it to him.

The Court found that Ms Fleming was entitled to payment for lost wages and holiday pay, as well as compensation for hurt and humiliation. Quantum has been reserved at this stage.

What can we learn from this case?

You cannot avoid your employment obligations by artificially imposing a relationship where it does not exist. Unless expressly prevented from doing so the Employment Court will always look to assess the real nature of an employment relationship.

The Court acknowledged that its finding could have significant implications. Noting that while compliance with the law may be costly and/or inconvenient, that is not one of the factors that Parliament has directed the Court to consider in determining whether a person is or is not an employee.


Want to know more?

If you have any questions about the above article please contact our specialist Employment Team.

PDF version: here.

This article was included in Edition 12 of our employment newsletter – Employment News which you can read here.