BLO2207 –EMPLOYMENT LAW
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BLO2207 –EMPLOYMENT LAW
ASSIGNMENT
SEMESTER XXXXXXXXXX
INSTRUCTIONS TO STUDENTS
Due date: Friday 17 August 2018 at 8:00pm
Marking criteria:
Criteria % of total
Identification and explanation of relevant legal issues 20
Understanding and application of relevant case law 20
Clarity, structure and organisation of response 20
Expression, grammar and spelling 20
Coherence and persuasiveness of arguments 10
Co
ect referencing regarding the full case names and
year, in the body of the advice (no footnotes are
equired).
10
Assignment Value: 30 marks.
Word length: 2000 words (200 words less or more is acceptable).
Plagiarism: Refer to the university policy as described in the unit of study guide.
Referencing: Any style is acceptable, so long as it is used consistently.
Bibliography: Please provide a list of cases and materials refe
ed to in your response as
the last page of your assignment. This is not included in the word count.
Extensions: As described in the unit of study guide.
Submission: Assignments must be submitted electronically via the drop box on this
unit’s VU Collaborate space. Hard copy assignments are not required and
will not be accepted.
QUESTION:
Carolyn Popovski is a mobile motor mechanic. She owns her own tools for work, and her
own work truck and other equipment. As she is a ‘mobile’ mechanic, she does not have her
own workshop where she does the work. She advertises her registered business. She earns
income by providing mechanic services to various regular clients and some new clients from
time-to-time.
A long-time friend of Carolyn’s, Gary Jones, asked Carolyn if she would give his car a minor
service. Gary was short of cash because he had recently had a spell of bad luck financially.
However, he needed his car serviced. What he said to Carolyn was: ‘If you give my car a
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minor service tomo
ow, I will let you stay at my holiday house at Port Fairy for a week this
summer, at no cost to you’. Carolyn thought this was great and so she said she would service
his car the next day as he required.
As it turns out, Gary’s car was a very old Holden that had some specific peculiarities that
had to be taken into account when it was serviced. Gary had an upholstery business in his
workshop at his house, and he decided it would be best if the car service was performed
there. Also due to the peculiarities of the car, when Carolyn was doing the work, Gary was
supervising her the whole time, instructing her what to do, and what order to do it in. They
had some difficulties with the job and it turned out to be more complicated than either of
them had imagined.
When the servicing was nearly finished, Gary was so thrilled, and since he was gasping for
a drink, he wondered out with a bottle of champagne to cele
ate what they had achieved so
far. Carolyn was thirsty as well, so she gulped down three glasses in ten minutes.
Then, Carolyn told Gary that she needed some more specialist oil to finish the servicing.
Gary was a bit wo
ied about Carolyn driving after drinking, so he wheeled in his mountain
ike and suggested that she ride that to the service station to get the specialist oil.
Carolyn was a bit overexcited cycling down the hill, and she knocked over Eadie Cassidy.
Eadie is an elderly lady, and she suffered a
oken hip. She had to be taken away in an
ambulance and have a hip replacement operation. She incu
ed $15,000 in medical expenses.
Eadie has informed Gary that she might sue him in a civil action, to recover those costs.
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YOUR TASK
You are a qualified lawyer who specialises in employment law. Gary has heard how
good you are at your job, and so he has come to you for advice.
GARY wants you to provide him with advice, in the form of a letter which may follow the
IRAC style of answer that we have practiced in class. Gary wants descriptions of the laws
that he can understand.
What he needs to know is:
1) What areas of law(s) are relevant ie what are the legal issues at a high level?
2) Are there any legal issues that must be considered for each area of relevant law? What needs
to be proven for Eadie’s claim (in each area of law) to be successful?
o Use subheadings as you step through each area
o What legal cases, as precedents, that spell out those areas of law are relevant?
o There is no need to refer to statutory law/legislation here, just use common law as it is
stated in the case law and as we have studied it in class and also as it is stated in the
prescribed text book.
3) As result of analyzing these points, can Eadie sue Gary to recover the $15,000?
o Will Eadie be successful?
o Explain why you think so.
Provide your advice in a logical manner, in the order indicated above.
For clarity – you do not need to, and should not, for this exercise, consider any statutory issues:
you do not need to apply, or refer to, any legislation. Neither do you need to consider workers
compensation or other insurance-related issues. Neither do you need to consider occupational
health and safety/work place safety legislation issues. ONLY talk about the areas of law we have
discussed in class in weeks 2 and 3.
Do not use more than 2,000 words for the advice, excluding your bibliography, which is a list of
the cases you have refe
ed to, in alphabetical order (as your last page of the letter).
30 Marks
Identifying the employment relationship
Identifying the employment relationship and
vicarious liability
Lecture 2
Why this topic is important
Whether or not a person is an ‘employee’ is one of the most important issues in employment law
If there is this relationship, legal rights & responsibilities are automatically imposed on both parties
Common law (case law) rights and obligations
Legislative rights and obligations
Some times it will be clear that a person is or is not an employee- often it will not be clea
It is not a matter of just saying so, it is a matter of examining the circumstances. The court will decide.
There is not always a written employment contract that makes it clear.
This subject and the tests we practice this week will be DIRECTLY RELEVANT TO YOUR ASSIGNMENT
You have to practice applying these tests to do well in the assignment.
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What this topic will cove
The features or characteristics of an employment relationship
There are legal consequences of an employment relationship. Companies may try to avoid or mask/hide because:
Employer wants to avoid:
Paying superannuation
Workers Compensation premiums
Providing paid leave
Complying with basic award conditions (pay and hours etc)
The risk of having to deal with an unfair dismissal claim
Certain other tax implications
The employee will also be subject to certain duties, such as duty of obedience (we cover these in a later lecture).
Employer may be liable under vicarious liability, if an employment relationship exists… for loss or damage caused by employee to third party
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Some basic principles
Not all situations in which payment is made for services are employment
Eg. Taxi driver / Uber drive
Tradesperson (eg. Plumber fixing a leaking pipe)
Many other contractors
A written agreement is not required to form an employment relationship
Must be a contract- but need not be in writing
Next week we look at if a contract exists
A ‘contract’ can arise because of what the parties say and do rather than what they record in writing
The contract may be about the employment relationship – confirming it, or the contract may confirm the contractor relationship
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What you call it doesn’t matte
What the parties call the a
angement does not define it eg. Titling a document an ‘employment’ contract or simply calling it something else to try and mask what it really is as an employment contract
Otherwise would be easy for employer to avoid paying tax etc.
Employers often seek to avoid legal obligations in this way eg. Cleaners, drivers
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Employment relationships come in many forms…
Does not depend on:
the length of service (short term or long); or
the type of work eg. Part-time, casual, etc
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In many cases it will be unclear whether the relationship is one of employment
Difficult cases often arise in the transport & construction industries, where ‘contracting-out’ & and ‘outsourcing’ are common practices
Also occurs in IT industry, or anywhere where a contracting a
angement is the intention but yet the full circumstances will lead the court to characterise it as an employment contract and relationship where all of the relevant rights and obligations accrue.
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A person may be an employee in one context but not in another context
Eg. Person A works at an office 9-5, & coaches a junior football team after hours one night per week
It is not uncommon for a person to have multiple jobs.
Some of those jobs may be within an employment relationship.
Other of those jobs may NOT be within an employment relationship.
An employment relationship may also change over time as circumstances change.
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How to determine?
We must, and the court does, look at past court decisions to determine what factors courts have said are relevant to determine if it is an employment relationship (and all the rights and obligations arise), or if it is contractor relationship.
Court decisions = common law
Courts look at all the circumstances:
Words AND actions of parties
Terms of any written agreement
Su
ounding circumstances
What has already happened
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In this topic we will look at some court decisions to see:
What they say about the employment relationship ie. Its essential features
What factors they regard as relevant
How they define the relationship
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Contract of service versus a
Contract for services
When a person is an employee, they have a ‘contract of service’
When the person is self-employed they are called an ‘independent contractor’ and they have a ‘contract for [particular] services’
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Most tradespersons are contractors (self-employed)
Drivers, other types of contractors or sub-contractors
Workers in the ‘gig economy’ may or may not be in an employment relationship
They perform services in exchange for reward (payment) but some are not employees
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Control
Courts have said that many factors are relevant to determining