BUS 228- Workplace law

Assignment 1

Name: Huang yuxuan Student number: 31486591 Tutorial Time: Thursday 3.30pm 4.30pm Due date: September 7th 2012

The issues to handle from this case is firstly, to define if Susies work relationship with Crestridge. Secondly there is the issue of bullying and harassment in the workplace. Finally, there is the potential breach of social media policy which will be considered misconduct. In order to determine if Susie is either an employee or independent contractor, we have to look at the rule of personal service and the common law tests which are the control test, integration test, the economic reality test, the ready mixed concrete test and the multi-factor test. The rule of personal service states that a contract of employment is a contract of service without the ability to subcontract entire work to other people. Next in the control test, the nature of the control and the degree of it forms the two elements. In yewens v Noakes (1880) QBD 530 at 532, it is stated a servant is a person subject to the command of his master as to the manner in which he shall do his work. The degree of control can be seen in Sgobino v state of South Australia (1987) 46 SASR 292. For the economic reality test, a worker will be an employee if they are considered to be economically dependent on an employer, as can be seen in Market investigations ltd v Minister of Social Security 91969) 2 WLR 1. In the ready mixed concrete test as defined by Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance (1968) 2 QB 497, a contract of service would exist if first, the servant provides own work and skill of service in consideration of a wage from his master. Second, the performance of that service will be subject to the others control in a sufficient degree to make that other master. Thirdly, the other provisions of the contract are consistent with its being a contract of service. Lastly, the multi-factor test demands the nature and degree of detailed control over a person alleging to be a servant as seen in building workers industrial union of Australia v Odco Pty Ltd (trouble shooters case) (1991) 37 IR 380.

The first rule of law to be applied is personal service, during the pre-contractual negotiations, Crestridge did not state its a contract for services and that Susie is able to subcontract the entire work to others, clearly stating that it is a contract of service, where her labour is being provided to Crestridge. The next test is the control test in which Susie has no control over her work hours or her tasks she has to undertake, as well as the vehicle she is permitted to use and the amount of superannuation Crestridge contributes on her behalf. However, she has control over her taxation and the clothes she wear to work, though this is not substantial enough to say Susie has enough control to be an independent contractor. Under the economic reality test, Susie is considered to be economically dependent on Crestridge, even though she has her own ABN and invoices her hours of work, she spends all of her working hours to work for her employer and the control Crestridge have over her is extensive. For the ready mixed concrete test, Susie agreed to work in consideration for wage and remuneration, she also has her work performance under a certain control by Crestridge and lastly, the other provisions of the contract are consistent with it being a contract of service. Finally, for the Multi factor test, Susie can be seen as an employee as she had an obligation to work late for an extra two hours each day, if she was a contractor, she would have no obligation to work any other hours other than stated in the contact. (Building Workers Industrial Union of Australia v Odco Pty Ltd. 1991)

In conclusion, Susie has fulfilled all the criteria of an employee and would thus be considered an employee under various tests.

The next issue in the case would be to determine if Susie has been subjected to bullying and harassment in the course of her employment under Occupational Safety and Health Act 1984 (WA) s 19. In section 19, an employer shall provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, the employees are not exposed to hazards As stated in the case, Susie had experienced difficulty working with her immediate supervisor and matters have got worse due to the extra time together. The Company has a duty to ensure an employee can safely carry out duties without harassment. As it can be seen of the case of Nationwide News v Naidu, ISS Security v Naidu (2007) NSWCA 377, the supervisor was in breach of various forms of abuse, including Verbal abuse, which the court ruled that the company was in breach of contractual duty of care. Susie was under verbal abuse from the direct supervisor daily and this is in breach of section 19 of the Occupational safety and Health Act 1984 (WA) where bullying and harassment are considered a source of hazards under the code of practice. The last issue in the case would be the potential breach of social media policy which will be considered misconduct. It is the duty of the employee to obey the orders of the employer, as stated by Lord Evershed MR in Laws v London Chronicle (Indicator Newspapers) ltd (1959) 1 WLR 698 at 700 that willful disobedience of a condition essential to the contract of service will justify summary dismissal. Susie has discussed that the annual reports contained manipulated statistics, which would not be factual and might contain confidential information. Furthermore, she did not use professional judgement and was not mindful of facebook communications to Crestridge employees when she posted the note on her facebook page as well as when she was talking about the manager. All of her actions would result in breach of the policy, being considered as misconduct. In conclusion, Susie is in breach of the social media Policy whereas Crestridge are in breach of the occupational health and safety hazard act in the case of bullying and harassment.