Workplace Law
Part A
Identification of the legal issue
From the case report, Judy was employed by the organization initially not on contract but as an employee. She also performed different kind of duties, which include working as a waitress as well as helping in the kitchen chores. However, the issue surrounding her resignation due to persuasion from her human resource manager together with the contract they entered is what brings the controversy of whether she is still an employee or not. The question that runs, in this case, is whether yet an independent contractor can be considered as an employee of an organization.
Relevant Law
Due to the confusion that results from differentiating employee and independent contractor, the common law test has been applied to determine their relationships in courts. However, some of the legislation have captured contractors and considering them as employees and considering the payment made similar for bought workers and contractors (Robertson, 2019). The common law test makes use of features that are weighed to establish where the balance lies. Based on the measure of control carried out by the employer, a contractor exercises duties at own initiative to attain the intended goal (Robertson, 2019). He/she maintains flexibility to ensure that all the task are done without fail, but at times contracts specify the materials and all other things that should be employed. On the other hand, the employer usually has control over when, how and where a worker carries out duties.
Furthermore, the difference can also be found based on the exclusivity where an employee works specifically for the employer as opposed to an independent contractor who can choose to work for multiple clients (Rawling, 2015). Besides, a worker generally performs duties and carries out the assigned activities using the tools and equipment which are provided by their clients. Expenses that may also be incurred during service provision by the employee are also reimbursed by the employer. This is the opposite of an independent contractor who works and performs all the activities and offering services using their resources.
Besides, an employee’s time on duty exclusively depends on how the employer has set. However, human resource recommends favorable scheduling with rights to be offered leave on request (Sappideen, O'Grady & Riley, 2016). This is not similar for the independent contractors because they set their own hours of work as long as they carry out the duties and provide the services they are required to do (Robertson, 2019). They are not also entitled to leave as in the case of employees. In terms of payment, employees are paid for their time, which has no similarity with an independent contractor who is paid depending on the services and the units of work they engage in.
Moreover, the presence of other legislation that can deem individuals as employees rather than independent contractors is also available. For example, the superannuation which considers a person as an employee in the cases where individuals are rewarded principally or wholly for their skills or labor, the worker has no right to delegate, or an individual is not paid for them to attain a goal.
Application of the law
There is a difference between employment and independent contracting, although they have a significant similarity that can make it difficult to differentiate. Contracting has served as one of the alternatives for traditional relationships that exist in business and also to bridge the gap that exists between individuals that want to provide services to multiples customers (Latimer, 2015). Judy saw this as an opportunity because of the fair pay and more flexible schedule which was indicated by the human resource manager. When dealing or willing to enter into a contract, individuals are usually advised to have a written agreement though it not unusual for businesses or individuals to engage in it verbally.
The issue in Judy’s case was to determine whether she is still an employee after her resignation. From the case, various aspects came up, which states clearly how she performed her duties, what she was paid for, and who gave instructions on the responsibilities she was assigned (Rawling, 2015). The common law test provides a clear way that can show the category that she can be placed. Firstly, the termination of the employment which came about after her resignation followed a contract with the same organization, of which she continued to perform the duties she was performing before (Sappideen, O'Grady & Riley, 2016). Although the written contract is recommended, the law also recognizes contracts that are entered verbally.
Judy worked for almost the same number of hours as she was still employed before resignation and later working as an independent contractor. With consideration of the common law test, she does not meet the features of an independent contractor; this is because, the employer decided on what she was supposed to do including the time and location (Employsure, 2019). The payment Judy received was not suggestive of the services she offered, instead, for the time worked. Besides, the kind of duties she carried was not unlikely to allow for delegation of responsibilities.
Conclusion
With significant consideration of the case and common law test, it can be concluded that Judy can still be considered as an employee of the Orienteat.
Part B
Identification of the legal issue
The issue, in this case, is whether there was a breach of any specific sections of the employment laws. From the report, it is indicated that Judy received a flat rate which was much lower than what she received before for same working hours and similar duties. The contract was later dismissed for expression of unsatisfactory payment rates she received. The issues around this are whether a worker has a right for better pay and how employment can be terminated.
Relevant Law
The Employment & Labour Law 2019 of Australia indicates some of the terms and conditions that a worker is entitled to be given. This was set by the National Employment Standards and include provisions of maximum weekly hours, request for flexible working arrangements, Fair Work Information Statement, and a notice of termination (Hor & MacDermott, 2019). They are the minimum levels that an employer must meet and therefore, they provide the most basic requirements that are expected by the workers in their working environment. In the case of Graham v Bankstown District Sports Club Ltd [2012] FWA 7977, the applicant claimed unfair dismissal which the employer alleged serious misconduct. He sought reinstatement under section 394 of the Fair Work Act 2009 (Cth) (the Act). Althought there was criticism on the procedure that was taken by the club, the tribunal held that the dismissal was no unjust, harsh or unreasonable and thus, it was not unfair. In this case, the club had set procedures in place which supported its contentions
Besides, the law also provides the process in which an employer can conduct termination. This involves the issuance of a notice of termination of their employment which must be provided and needs to indicate the last date to report for work (Hor & MacDermott, 2019). However, employees are also protected from terminations of their employment that are unjust, harsh, or unreasonable, arising from exercising rights in the workplace and discriminatory (Howe, 2016). Consent for termination though, is not required by the employer to initiate it.
An employer has the right to terminate and employment for reasons such as individual worker poor performance or unsatisfactory behavior as long as appropriate notice is given or payment in lieu is made. However, dismissal without warning can be given in the case of serious misconduct (Hardy & Cooney, 2016). Furthermore, an employer is required to follow procedural factors for dismissal which then provides the relevant information whether it is unfair including if the employee was notified and given a chance to respond to the situation (Floyd et al., 2017). In other cases such as unsatisfactory performance, a worker should be provided with an opportunity for them to improve.
Application of the law
As indicated by the National Employment Standards, all the employers are required to meet the needs of their workers. This was not the case in Judy’s report since fair pay was not offered despite performing the same duties as before. Also, the procedure for termination indicates that individuals should not lose their jobs because of exercising their rights in the workplace (The people in dairy, 2019). Judy’s attempt to negotiate for better pay resulted in the termination of her employment which merely is unfair.
Furthermore, she was not served with notice of termination of employment which must be given except in the cases of serious misconducts. The letter should have been presented to her with more elaborate information that includes the last day she is expected to report to work (Hor & MacDermott, 2019). In contrary to the requirements, the manager terminated her employment immediately and without notice.
Although an employer has the right to terminate employment, due process needs to be followed. For example; the manager should have given notice and provide the reasons behind the decision. Then give Judy a chance to defend herself or to look for ways to improve her performance (Hor & MacDermott, 2019). In case all these are done, or the situation behind the notice remains the same, then there might be the reason to terminate. However, from the report, this was not done.
Conclusion
The report suggests that Judy was not offered with a fair pay together with unfair termination of her employment; hence, Orienteat breached the law on termination of employment and National Employment Standards.
References
Employsure. (2019). Employment Law Changes in Australia. Retrieved 14 September 2019, from https://employsure.com.au/guides/employment-contracts-and-legislation/employment-law-changes/
Hor, J., & MacDermott, T. (2019). Employment & Labour Law 2019 | Australia | ICLG. International Comparative Legal Guides International Business Reports. Retrieved 14 September 2019, from https://iclg.com/practice-areas/employment-and-labour-laws-and-regulations/australia
Howe, J. (2016). Rethinking Job Security: A Comparative Analysis of Unfair Dismissal Law in the UK, Australia, and the USA. Routledge.
Hardy, T., & Cooney, S. (2016). The Transformation of Enforcement of Minimum Employment Standards in Australia: A Review of the FWO’s Activities from 2006-2012. Centre for Employment and Labour Relations. Law of Melbourne Law School. Disponível em:< http://law. unimelb. edu. au/__data/assets/pdf_file/0008/1556738/FWOReport-FINAL. Pdf>. Acesso em, 12, 563-575.
Floyd, L., Steenson, W., Coulthard, A., Williams, D., & Pickering, A. C. (2017). Employment, Labour, and Industrial Law in Australia. Cambridge University Press.
Latimer, P. (2015). Australian Business Law, 2015. CCH Australia Limited.
The people in dairy. (2019). Pay rates. Retrieved 14 September 2019, from http://www.thepeopleindairy.org.au/engagement-reward/pay-rates.htm
Robertson, M. (2019). Deciding between an employee or contractor. Retrieved 14 September 2019, from https://www.cpaaustralia.com.au/~/media/corporate/allfiles/document/professional-resources/practice-management/employee-versus-contractor-factsheet.pdf?la=en
Rawling, M. (2015). Regulating precarious work in Australia. Alternative LJ, 40, 252.
Sappideen, C., O'Grady, P., & Riley, J. (2016). Macken's Law of Employment.
