Discrimination: Smith v. Air NZ

Service industries are permitted to discriminate against customers with special needs where it is not reasonable to provide the service without charging extra. Air New Zealand was held justified in charging a passenger for use of supplementary oxygen when flying.

The Human Rights Act 1993 seeks to reduce discrimination, but it is not designed to force suppliers to cater for the needs of the disabled.

An Air NZ passenger alleged the airline was in breach of the Act by requiring her to organise and pay for her own oxygen support on domestic flights and to pay for oxygen supplied on international flights.

She required oxygen when flying because of a muscle weakness limiting the capacity to draw in enough air. Airlines carry supplementary oxygen as a safety measure on all flights and this should be made available to her free of charge, she argued.

In respect of domestic flights, Air NZ said any passenger requiring supplementary oxygen was in the same position as a disabled passenger who required a travelling companion – it was reasonable that she be required to provide her own oxygen equipment (of a certified type and standard) and pay for a supplementary seat to accommodate the equipment.

As regards international flights, international transport safety regulations prohibit individual passengers from bringing their own oxygen equipment on board. Air NZ did provide oxygen in these cases, charging a flat rate of US$75 per sector flown. The Court of Appeal ruled that this charge was reasonable as it was some 20% of the real cost of providing a separate supplementary oxygen supply to one passenger.

Smith v. Air New Zealand – Court of Appeal (18.02.11)

02.11.002

Minimum wage: Idea Services v. Dickson

Service industries will be re-doing their sums after a Court of Appeal ruling that staff on call overnight are entitled to at least the minimum hourly pay rate, even while asleep in the absence of a callout. Expect some quick footwork as levies are imposed for use of sleeping facilities in order to claw back some of the extra pay demanded.

While the Court of Appeal case concerned community care workers caring for the intellectual handicapped, it potentially affects a wide swathe of employment including watchman and emergency personnel.

The Court was told care workers staffed accommodation for intellectual handicapped in residential care. Those rostered for “sleepovers” carried out a supervisory role overnight. They dealt with any incidents which arose and maintained security. Supervisors could not receive visitors, could not consume alcohol or other drugs and could not leave the premises without first arranging for cover but otherwise were free to sleep when no direct supervision was required.

The Court ruled that this level of constraint on a supervisor’s choice of action amounted to “work” for the entire period of each sleepover.

Supervisors received a flat rate payment of $34 for each sleepover, topped up by further payments of $17.66 per hour for time logged actively tending to the needs of residents overnight.

The Court ruled that a flat rate payment was in breach of the Minimum Wage Act 1983. It amounted to about four dollars per hour for the working period covered by a sleepover.

Supervisors were entitled to backpay as compensation for hours worked at less than the minimum wage during sleepovers.

Idea Services Ltd v. Dickson – Court of Appeal (16.02.11)

02.11.001