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Sleep Overs and the Minimum Wage

Published 01 Aug 2009

Employers who employ staff for sleep over shifts potentially face increased costs as a result of the Employment Court's decision in the case between Idea Services Ltd and Phillip Dickson.

Mr Dickson is employed as a community service worker. His work involves supporting and caring for people with disabilities living in community homes. He is required to sleep over to care for people on site. During the sleep over, he is paid at a rate well below the minimum wage. He claimed that this constitutes work and should be paid accordingly.

The Court found in his favour for three reasons:
  • Because he is required to be onsite overnight, Mr Dickson is constrained in his freedom to otherwise do what he pleases;
  • Mr Dickson has very important responsibilities , as he is required to sleep at the employer's premises and provide a high level of care;
  • The work is of an important nature from the Employer's perspective.
Once the Court had made the decision that the sleep- over constituted work, a second issue needed to be addressed – Does this work need to be paid in addition to the normal wage? i.e. should employees be paid additionally for each 'sleep over' hour at the minimum wage rate, or is it included in their standard pay, in which case, the average pay per hour worked may drop below the minimum wage. The court made an interim judgment not to decide this point. The issue will be determined at a later date.

In this industry, many of the workers are paid close to the minimum wage, so when taking sleep overs into account, workers may receive less than the minimum wage for the number of hours worked.

This case has ramifications for care giving industries, but it could equally apply in other industries, such as the farming sector, or education industries in cases where people are required to be on site and on call during the night.

So these industries could be faced with having a personal grievance taken out against them and the costs quickly mount up.

The costs and the impact on the business can be crippling and include:
  • The stress on the employer as a result of a Personal Grievance;
  • Cost of defence;
  • Court costs, settlement costs;
  • Cost of making up the financials and backdated pay;
  • The impact on the business as a result of the manager and often the management team's efforts being diverted away from focusing on their business.
If you are part of an industry which could be affected, then it is recommended that you seek advice regarding your rights and obligations.
Please click the icon below to view a copy of the case in question