Sleep is increasingly being considered essential to physical and mental health, brain function, and overall well-being, acting as a vital period for body repair, memory consolidation, and toxin removal. However, day to day life may intervene and interfere with the recommended 7 to 9 hours of sleep each day. The causes are numerous; sleep deprived parents coping with a young child, a stressful period at work or at home, a sleep disorder, and nightshifts are a notorious disrupter of sleep. What if it impacts our work?

Recent Employment Relations Authority decisions highlight how difficult it can be for employers to make the right call.

The Waiheke Island Supported Home Trust provides government funded care services for up to ten residents who live at the Trust’s Waiheke Island premises. Ms Shorter had been employed by the Trust for 18 years, and was 70 years old, when she was dismissed for sleeping on the job. She worked 12-hour shifts from 8pm to 8am on Thursday, Friday and Saturday evenings. In 2025, after Ms Shorter’s new manager noticed her shopping during the day between her shifts (it being expected that she would need to sleep during the day), a video camera was installed. During her shifts for the week, the video footage showed Ms Shorter appearing to sleep on three consecutive nights, 3 hours and 5 minutes the first shift, 1 hour and 50 minutes on the second and 3 hours on the third.

A disciplinary process was undertaken and the Trust summarily dismissed Ms Shorter for serious misconduct for “deliberate avoidance of duties”. In finding that Ms Shorter was unjustifiably dismissed, the Authority Member concluded that night staff had an understanding from a meeting in 2021 with a previous manager that they were able to sleep during their breaks; “They had a legitimate expectation of it even though there is insufficient [sic] to establish a contractual entitlement to sleep.”

Ms Shorter was awarded $25,000 compensation, plus six months of lost wages. For reasons that are not entirely clear in the determination, these remedies were then reduced by 25% for Ms Shorter’s contribution to the situation.

Another case last year involved the Inland Revenue dismissing an employee who kept falling asleep at work. The employee, whose name cannot be published, wanted to be reinstated to her job. Apart from falling asleep, the employee was repeatedly late, wore inappropriate attire, spent time on personal calls, had trouble completing tasks and abused her colleagues.

Although Inland Revenue’s efforts were recognised in managing the employee, the Authority concluded that while “there were considerable difficulties in the employment relationship between [the employee] and Inland Revenue, I do not accept it was at the point that a fair and reasonable employer could justifiably dismiss [the employee].

The Authority Member concluded that Inland Revenue had acted prematurely and without justification by dismissing the woman, that it had not followed a fair process and that the failures were more than minor. The employee was awarded $30,000 compensation, but her application for reinstatement was declined.

It is not just in New Zealand that the issue has been recently addressed. Shannon Burns was a highly paid vice-president of a soft-ware company in the United Kingdom on a salary of £220,000 with £78,000 bonus per annum. She was sacked after spending the night sleeping in a sauna when she lost her room keys during a team-building event in Austria.

On the final night of the event Ms Burns was observed to be “slurring her words” after drinking alcohol. Ms Burns explained that when she went back to her room she found it locked and that she did not have her key. She said that there was no receptionist on duty and that her roommate had fallen asleep and was not answering her phone. She explained that she eventually gave up and went to sleep in the sauna.

In the Employment Tribunal she won her disability discrimination case after arguing the company she worked for had not done enough to help her perform well taking into account her ADHD. The Tribunal heard evidence that Ms Burns’ ADHD meant she was forgetful and often lost her phone and keys. After she started work, she had asked the company for a coach to help her with ADHD as she was feeling “deeply overwhelmed” at her workload, which she did not receive.

And of course there is the landmark case of Idea Services v Dixon where the Supreme Court confirmed that employees may be “working” even when they may be permitted to sleep on the job. It effects employees who may be required to stay on-site, are restricted from leaving, and are required to be available to respond to incidents. Depending on the restrictions on the arrangement, such employees may be entitled to the minimum wage for "sleepover" hours under the Minimum Wage Act.

Those of us who may enjoy a quick “power nap” from time to time should remain cautious of succumbing to that urge in the workplace. Conversely, our employers may need to dig a lot further into why an employee may have fallen asleep on the job before jumping to the conclusion that the employee should be sacked. Read more...

There is no doubt that Christine Fleming and Peter Humphries are courageous. They have fought their way through the employment jurisdictions to the Supreme Court, which late last year confirmed that they were indeed employees.

Ms Fleming and Mr Humphrys are even more courageous in that they have taken on the task of full-time care for their respective adult disabled children. Ms Fleming’s son Justin was born in 1981. He is physically disabled as a result of a chromosomal condition. The principal consequence of his condition is physical frailty. This has affected his ability to take care of himself. Justin also has a moderate intellectual disability. Mr Humphrys’ daughter Sian was born in 1988. She was diagnosed with a congenital condition as a young child. Sian does not have verbal language and, while not physically frail, needs constant care. Amongst other matters, she needs someone to accompany her outside and has no road safety awareness.

It had been government policy that funding for disability support services could not be used to pay for care provided to disabled people by family members with whom they lived. In 2012 the Court of Appeal in Ministry of Health v Atkinson found that this policy was discriminatory. Non-family carers were paid for caring for disabled persons but family carers, providing the same care, were not. As a result the Funded Family Care scheme was introduced in 2013 and run by the Ministry of Health | Manatū Hauora. Then a later scheme, the Individualised Funding Scheme, was introduced in 2020.

Ms Fleming originally received a domestic purpose benefit and stayed at home to care for Justin. When she became aware of the Funded Family Care scheme she applied for funding. The scheme provided for funding for a maximum of 40 hours a week with provision for an extension. Ms Fleming would have accepted funding based on the 40 hours figure but was offered, initially, 15.5 hours and later, 22 hours. She declined the offers primarily because they were insufficient. Since 2021, Ms Fleming has been funded under the Individualised Funding scheme. Mr Humphreys’ care of Sian was funded under the Funded Family Care scheme from 2014 to 2020, after which he received funding under the Individualised Funding scheme.

Ms Fleming and Mr Humphries each brought proceedings in the Employment Court claiming that, in their full-time care for their children, they were “homeworkers” of the Ministry. Section 6 of the Employment Relations Act makes it clear that the definition of “employee” includes a “homeworker”. A “homeworker” is in turn defined as “a person who is engaged or employed by any other person to do work for that other person” in a home.

The Employment Court found that Ms Fleming and Mr Humphrys were both homeworkers. That Court also concluded that the correct calculation of wages for Ms Fleming should reflect her hours of work, applying the test for what constitutes work as set out by the Court of Appeal in Idea Services Ltd v Dickson. That case concluded that Mr Dickson was “working” for the purposes of the Minimum Wage Act when employed on a “sleepover” in a community home.

The Court of Appeal overturned the Employment Court’s decision in relation to Ms Fleming, concluding she had not been an employee of the Ministry. However, the Court of Appeal confirmed that Mr Humphreys had been engaged by the Ministry as a homeworker during the earlier period when he was receiving funding under Funded Family Care. That scheme required an employment agreement so, where Sian did not have the capacity to enter into such an agreement, the Court accepted the Ministry was the employer. But the Court overturned the Employment Court’s decision that Mr Humphreys was an employee of the Ministry when funded under the Individualised Funding scheme.

The Supreme Court disagreed and unanimously allowed Ms Fleming and Mr Humphreys appeals, declaring that they were employees.

The Supreme Court noted that the definition of a “homeworker” was introduced to provide protection for vulnerable workers working from home and was consistent with the Convention on the Rights of Persons with Disabilities. When viewing the real nature of the arrangements objectively and in context, the combination of relevant factors meant Ms Fleming was engaged as a homeworker by the Ministry. The Supreme Court concluded that the Ministry’s offer of Funded Family Care was wrongly calculated and unreasonable, if not unlawful, due to the number of hours offered where it was accepted that Justin required care and supervision 24 hours a day, seven days a week.

In relation to Mr Humphreys, the Supreme Court considered whether Mr Humphreys ceased to be a homeworker when his funding transitioned from payments under the Funded Family Care scheme to the Individualised Funding scheme. Under Individualised Funding the services of family carers could be purchased using the funding provided. Disabled people who received this funding were encouraged to have an agent to manage the purchase of these services. As Sian does not have the capacity to appoint an agent to manage her care, and Mr Humphreys could not make the relevant decisions on Sian’s behalf, Mr Humphreys remained a homeworker employed by the Ministry.

It is understood that thousands of carers may be impacted by this decision. The Minister for Disability Issues, Louis Upton, has said she is seeking advice on the Supreme Court's decision. That no doubt is “government speak” for “how do we get around this”. Possibly the only salvation for Ms Fleming and Mr Humphrys’ hard won recognition as employees is that this is an election year. Read more....

It certainly has been an “annus horribilis” for workers rights and protections this year. The phrase, meaning "horrible year," was made famous by the late Queen of England in a speech in 1992 following a year in which the royal family suffered a major fire at Windsor Castle, the separation of the (then) Prince Andrew and Sarah Ferguson, the divorce of Princess Anne, and other marital issues within the royal family.

Workplace Relations and Safety Minister Brooke van Velden has led this Government’s programme of reducing employment protections and entitlements. In case it has been missed, here is a quick summary of what has been, or is in the process of being, stripped away from New Zealand workers.

Just before the Budget25 was delivered, legislation was rushed through Parliament which implemented controversial changes to how pay equity claims could be made. Dozens of existing claims were blocked for female-dominated workforces which are generally considered to be underpaid in comparison to those dominated by men. Those claims are in some of our most valued occupations - Plunket nurses, community midwives, hospice nurses and health care assistants, primary care nurses, nurses in residential care. The “double whammy” being that the government has raised the bar for future claims to be successful.

In June this year the Government introduced the Employment Relations Amendment Bill. This Bill seeks to remove workers protections in various ways to give effect to several reforms that Minister van Velden has slowly announced over the last 12 to 18 months.

The Minister has tried to “sell” the proposed changes to employee/contractor laws by saying that it will make it easier to clarify whether a worker is an employee or a contractor. It reflects changes that the multinational company Uber lobbied the government on. Now that the Supreme Court has declared that Uber drivers are employees, the proposed changes are even more necessary for that multinational company to operate in New Zealand to avoid its obligations across a suite of statutory minimum employment entitlements such as the minimum wage, minimum hours of work, rest and meal breaks, holidays, sick leave, parental leave, domestic violence leave, bereavement leave and the ability to pursue a personal grievance.

“High income” workers do not escape the changes either. The Bill seeks to remove unjustified dismissal protections for employees with a yearly salary exceeding $180,000. High income earners will be able to be dismissed “at will” (for no reason). It is highly likely that employers will prefer to not “opt in” to the protections of the current unjustified dismissal regime for high-income employees. Instead, prospective employees will have to try to negotiate terms such as enhanced notice periods and severance payments to provide some protection against their possible abrupt termination of employment by their new employer.  

The Bill also introduces changes to how the Employment Relations Authority assesses contribution (how much the employee may have contributed to their dismissal). These include removing eligibility for most remedies where an employee’s behaviour amounts to serious misconduct. It significantly reduces the opportunity for reinstatement and the remedy of compensation for hurt and humiliation where the employee has contributed to the grievance. This means that where an employee has contributed to the situation giving rise to the personal grievance (but has not committed “serious misconduct”) any remedies awarded (e.g. lost wages) may be reduced by up to 100%. Currently, the Employment Court has determined that remedies may only be reduced by up to 50%. Such reductions being around 40% in 2013 and 22% in 2023. 

Perhaps the most significant attack on worker protection is in relation to health and safety. The government is proposing to alter WorkSafe’s priorities from enforcement to advice. It is introducing health and safety changes that include a "carve-out" for small businesses that will be exempted from certain requirements of the Health and Safety at Work Act. The primary duty of care will be amended so that small businesses only need to manage critical risks - those that could cause death, serious injury or serious illness, and to provide basic workplace facilities. 

In 2023 the NZ Business Leaders’ Health and Safety Forum produced a report on workplace safety and the toll on New Zealand workers. It reported that our fatality rates are where the United Kingdom was in the 1980s. Our fatality rate is twice that it is in Australia. There are nearly 600,000 small businesses in New Zealand (those with less than 20 employees) and they make up over 95% of all businesses in the country. The proposed changes will reduce health and safety obligations to employees and others for most of our businesses.

If workers are not concerned, they should be. Women in our most caring and underpaid occupations now have further impediments to redress those inequities. Remedies awarded to employees that have been unjustifiably treated are already low when you factor in the time and cost it takes to pursue a claim in our employment jurisdiction. The proposed hurdles just make it harder for workers to stand up and say “please treat me fairly”. And on top of that health and safety protections have been diminished for workers in most of New Zealand’s businesses. Read more....

New Zealand’s highest court, the aptly named Supreme Court, has had the final say on whether the Uber drivers are employees or contractors. Importantly, but not surprisingly, the Supreme Court has declared them employees (as was the case in the Employment Court and the Court of Appeal).

The Government has proposed a law change that is currently before Parliament that it says is designed to clarify the distinction between employees and contractors. Workplace Relations and Safety Minister Brooke van Velden in commenting on the latest decision said she respected the court ruling but she said it highlighted a “grey area in employment and contract law” that her law reform aims to address.  It does no such thing. All the courts that Uber has litigated this issue in have conclusively found that the Uber drivers are employees using the current and well established common law tests.

Most of us know how Uber works. Passengers download the Uber App; they advise Uber (via the App) of where they want to travel to; Uber (via the App) offers the trip to available drivers; an available driver accepts the offer, collects the passenger and drives them to their chosen location. Passengers make payment to Uber; Uber makes payment to the drivers.

Uber has argued that it only supplies the digital platform that then enables drivers and passengers to connect and form their own business relationships. Uber says that it does not itself provide passenger transport services. Uber says that it does not control the drivers. It says the drivers choose their working hours and may work for competitors, and that the drivers operate their own businesses.

As the law currently stands, the starting point is the Employment Relations Act. In deciding whether or not a worker is an employee or a contractor the Court “must determine the real nature of the relationship”. In doing so, the Court must consider “all relevant matters, including any matters that indicate the intention of the persons” and “not to treat as a determining matter any statement by the persons that describes the nature of their relationship”.

Well understood common law legal tests have then been used to determine if the worker is an employee or contractor. Briefly, they are:

·        The intention test - what did the parties intend. Written agreements may point to this if they exist.

·        The control test - the greater the control exercised over the work undertaken including when and how it is done may point to the worker being an employee.

·        The integration test - this looks at how integrated and important the work undertaken is to the employer’s business.

·        The fundamental or economic reality test - this looks at whether the worker is in business on their own account. They should invoice, pay their own tax, and be able to work for multiple entities.

In coming to their decision that the Uber drivers were employees the Supreme Court justices commented that “a passenger could not reasonably be expected to think they were contracting with the driver when they got into the car”.

In balancing the tests the court said that the factors pointing away from employee status (such as intention in the written agreements, the drivers’ ability to choose their hours of work and to work for others, plus vehicle ownership) were outweighed by those pointing towards it (including their integration into the Uber business, Uber’s control over the drivers and the inability of the drivers to develop their own Uber businesses).

The decision is important as the Chief Judge in the earlier Employment Court decision commented that "employment status is the gate through which a worker must pass before they can access a suite of statutory minimum employment entitlements, such as the minimum wage, minimum hours of work, rest and meal breaks, holidays, parental leave, domestic violence leave, bereavement leave and the ability to pursue a personal grievance."

The Workplace Relations and Safety Minister Brooke van Velden has tried to “sell” the proposed changes to employee/contractor laws saying that it will make it easier to clarify whether a worker is an employee or a contractor. The laws as they currently stand have certainly provided that clarity in the Uber cases. The reality is that the proposed changes will make it easier for more cost conscious businesses and big multinational companies such as Uber to avoid even the minimal level of employment entitlements that employees are protected with. Read more....