The Employment Court has agreed with the parent and fulltime carer of a severely disabled woman, that he is employed by the Ministry of Health and not his daughter.
Photo: RNZ / Richard Tindiller
Peter Humphreys received the declaration, with Chief Judge Christina Inglis agreeing there was no way his 33-year-old daughter, who has Angelman syndrome, could be his boss.
"As an employer the Ministry has a range of obligations and liabilities, including to remunerate Mr Humphreys appropriately for his work and in respect of health and safety."
Humphreys sought the declaration after years of caring for his daughter, and not having a clear idea of who was actually employing him.
He gave emotional evidence in court - that went unchallenged - of the frustrations he had encountered over the years trying to raise employment-related issues.
"I have over the years complained about employment issues, ranging from pay parity to number of hours allocated. I have never been able to complain to my Ministry of Health-appointed employer, my daughter Sian.
"I have always complained to the Ministry of Health or the local needs assessment assessors Disability Support Link. The Ministry of Health have always dictated my working conditions and I have never witnessed them communicating with Sian about my working conditions.
"The never-ending battles that us parents of adult disabled children who want to be supported to care for our children at home just wears you down. The bottomless money coffer that is there to fight us through the courts is something we cannot compete with."
The Ministry of Health argued it was merely the funder through the Individualised Funding system, and that this distanced it from the delivery of service.
However Inglis was not satisfied the evidence supported the "hands-off" characterisation.
"The Ministry of Health was not a distant participant in the delivery-of-care process or that it is aptly described as simply a funder. Rather, I infer from the evidence that the Ministry of Health sat firmly in the driver's seat."
Individualised Funding is essentially a fortnightly allowance that covered a set number of support hours.
"Hosts were contracted by the Ministry of Health to support people in using Individualised Funding; the disabled person or their agent was responsible for all aspects of employment, including Accident Compensation levies, employment contracts, leave and tax requirements and Kiwisaver; budget management and the quality of the services provided.
"Payment was made by the Ministry of Health to the host who then on-paid to the family caregiver (employee) on the provision of time sheets."
The example was given in court of how impractical it was for Sian Humphreys to be considered Peter Humphreys' employer.
"On 4 February 2021 a letter arrived at the Humphreys' home. It was addressed to Sian. The letter advised Sian that her tax returns were overdue and that prosecution action might follow.
"As Mr Humphreys pointed out, Sian is not able to open a letter. Nor is she able to understand what is written, much less take steps to comply with any tax obligations. I refer to this because it reflects on the practical reality of the situation, and Sian's capacity (if it were otherwise in doubt), to discharge the onerous obligations resting on all employers in New Zealand," Inglis' judgment said.
Humphreys said while he was pleased with the decision, he was bracing for the ministry to appeal.
The ministry has not yet responded to a request for comment.
