The Relationship Between an Employer and Employee - Case Study Example

? CASE STUDY Number October 9, OUTLINE CASE STUDY I. IDENTIFICATION OF LEGAL ISSUE II. RELATION BETWEEN THE CASE AND RELEVANT PRINCIPLES OF LAW III. APPLICATION OF PRINCIPLES TO THE FACTS IN THE CASE IV. CONCLUSION Identification of Legal Issue The relationship between an employer and employee ought to be defined by a contract. Through the contract, an employee gets to understand his or her duties, while the employer defines his conditions and terms for the job. In this case, there is no mention of a written contact, so it can only be assumed that June’s relationship to Westwood University Library, which is an employee-employer relationship, is based on an implied contract. The job advertisement also mentioned of the position being long term, which would be taken to mean permanent. However, from the case, it is clear that June works on a contractual basis, which is contrary to what she understood during her job application. It is also clear that June has sometimes had to work overtime, which is an issue that ought to have been highlighted in her agreement with her employer. Apart from the work contact, Westwood University Library’s policy on social networking requires employees to use their professional acumen while using social media, and also to be careful of their communications on twitter and face book, especially communication between Westwood’s employees and any other form of communication on these sites, that has the potential of being seen by Westwood employees. June however went ahead and posted a negative comment on face book regarding bosses, despite being aware that this would be seen by Malcolm, her immediate supervisor, since he is her face book friend. Malcolm, who is June’s immediate supervisor and also the human resource manager at Westwood University Library, has the habit of bullying June. This can be seen from several comments he has made such as “Can I expect you will start doing a good job now?”, when June got accepted at the university for a post graduate course. He was also once overheard saying that “June will never get a promotion while she hides behind a lens” and “Her belly dancing costume would be more appropriate than the clothes she wears to work”. From this, it is clear that Malcolm has the habit of criticizing June’s work and making negative comments regarding her style of dressing, and usually adding what he would prefer to see her wear. Relation between the Case and relevant Principles of Law The Australian law recognizes both written and implied contracts of employment. The terms and conditions which define the relationship existing between the employees and the employer are established through common law. June’s employment case did not mention of a written agreement between her and Westwood, but she undertook the responsibility, therefore probably on an implied contract. However, a contract of service can be established through the existing authority of command, control, chances of risk and profits, and ownership of tools in Westwood among others. There is a structured workplace agreement that places a higher authority and control on the employer to set other employment conditions beyond the National employment standard.1Here, the employee accepts to perform specific work for his employer, availing his labor for use within the limits of the employer’s managerial privilege. In exchange, the employee is entitled to receive remuneration for the labor used. In reference to employers and employees relations, the employers are in a position to direct what work is to be done, the duration of working hours per day, take responsibility for financial risk, as well as employee’s superannuation and regular payment.2 June’s contract of employment stated that it was a long term position (an indefinite period). Her employer defined mandatory daytime hours of work and defined her duties to be within the administrative roles. She has an immediate supervisor least to mention other superior staffs, which defines the structure of whom she should report to. She is paid a monthly salary by Westwood, based on her hourly performance, pays her own tax as an employee, and Westwood handles her pension contributions on her behalf. Westwood provides other policies and procedures to the employees, such as a dress code and policy governing the use of social media in communications in relation to the ethical conduct. Similarly, the employer (Westwood) offers June training, avails working tools (e.g. campus video, and the underlying communication infrastructure) required in performances, which means that Westwood bears all the risks and operational costs of the office communication and infrastructure use, as well as the employee wages. June is an integral part of Westwood’s business on a fulltime basis, devoting her entire labor service to her single employer who provides her monthly payment. Application of Principles to the Facts in the Case In the first place, the National Employment Standards (NES) covers June, like anyone else in the nation wide workplace relation system. It places minimum employment conditions, which employers are expected to comply with, despite the agreements they make with their employees. In the Fair Work Act 2009 (Cth) s. 124, NES recommends that fair work information statement be made available to the employee before employment or immediately after, entailing more information about freedom of association and protection of personal information by privacy law.3 If Westwood failed to submit these National Employment Standards to June, in spite of their implied policies, then they are partly in breach of the contract. However, June had accepted the contract that legally bound her and Westwood. In her legal capacity, the contract required an offer and valuable consideration among others, but most of all, consent.4 If June accepted the contract with the implied policies set by the employer without access to submitted NES by the employer, her right to information was denied. If provided with the NES, she would have been able to compare it with the terms of the proposed contract, and pointed out any less generous terms, and request for amendment for compliance before any agreement or further work. Westwood library provided the employees with certain policies in the use of social media in matters related to work. Assuming the NES was already in place or not, as a business, it did not impede June’s right of free communication, but placed some measures for ethical purpose. There exists a breach of implied term of mutual trust and confidence caused by the employee for conducting in a manner that would possibly damage the relationship.5 Westwood required all employees to use their professional judgment in communication with or accessible to Westwood’s employees on the social media ensuring the references they make to are truthful and without confidential information, least non compliance would be equated to misconduct. With full awareness, June went ahead to comment carelessly severally about her senior colleagues and their duties on face book and twitter. In a way, she knew she was connected to her colleagues and those in her network would view the information. This was an act of negligent and ignorance on her part that could harm her colleagues’ employment, with potential to cause a dispute, and welcome critics to the library that would send students and customers away. In Australia, breach of essential terms (condition) and sufficiently serious breach of non essential terms by a defaulter would provide to an innocent party an option to terminate the contract or claim for damages.6 Compliance to the privacy rules in social media communication and its policy may not have been expressly conditional, and even if equated to be non essential as per the court’s construction, June’s promise to comply with the policy or term was of importance to Westwood library. To add on to acts of misconducts, June is required to have a dress code like any other employee, but ignores putting on the uniform. She is under a contract of service, not a contractor; hence under employer’s directives, which she objects to by preferring fashion to the required dress code. It is necessary that employees work in a suitable environment for the sake of their wellbeing and performances. What June had been experiencing from her immediate boss can be considered bullying that could result to negative impacts on the business and the employee. Bullying entails less favorable treatment of an individual by another or a group, and an inappropriate practice in the workplace; bullying acts range from intimidations, verbal abuse to serious psychological abuse.7 She was repeatedly insulted and intimidated over her social opinion and preference through unfair comments by her supervisor. In fact, she admits to have heard her relationship and communication deteriorated due to the difficulties and hostility of her supervisor. The Work Health and Safety Act 2011 (Cth) s. 4, 19, 29 views bullying as a psychological risk to health, calls for employers to ensure the health and safety of workers they engage and direct or employ, and requires employees to take reasonable care in their conduct not to affect others safety and health respectively.8 Normally, the law requires that the employers or the internal mechanism try to resolve issue at hand first. Therefore, if all attempts of June with his supervisor, employer, HR, health and safety representative and committee fail, the other option is the law. If the employee reported to the employer and no actions were taken, the employer can be accused of a negligent duty of care before the law of Queensland State.9 In Southern Australia, the employee can lodge a complaint with SafeWork of South Australia, where the occupational health safety (OHS) inspector assesses whether the employee and the employer meets their obligations under the law, and when the workplace bullying is justified, a disciplinary action is taken against the offender.10 So far, in June’s case she had not weighed all these available options to resolve the issue internally. Though the law protects her against bullying, she needs to follow the stipulated process in resolving such disputes. Conclusion Employment contracts can either be implied or written. They also ought to contain all terms and conditions such as nature of work (which can be permanent or contractual), remuneration, working hours (including any overtime) among other issues. In this case, there is no written agreement between June and her employee, and she works on a contractual basis despite having applied for a long term or permanent position, which is what the job advert stated. June also works overtime, while this is not stated in her agreement with her employer. Bullying in the workplace is a serious issue that is protected by the law. However, employees ought not to take issues in their own hands when faced by such situations, as it also gets them on the wrong, like in June’s case. Disputes ought to be resolved through a professional approach. Bibliography Australian Human Rights Commission. “What is Workplace Discrimination and Harassment.” Last modified January 11, 2010. http://www.humanrights.gov.au/what-workplace-discrimination-and-harassment “Contractor or Employee.” Fairwork.gov.au. Last modified September 26, 2012. http://www.fairwork.gov.au/employment/independent-contractors/contractor-or-employee/pages/default.aspx “Employment Agreements.” Austrade.gov.au. Accessed October 9, 2013. http://www.austrade.gov.au/Invest/Doing-business-in-Australia/Investor-Guide/Running-a-business/Employing-people-in-Australia/Australian-employment-conditions/Employment-agreements Fitzroy Legal services. “Elements of a Contract.” Lawhandbook.org.au. Last Modified July1, 2010. http://www.lawhandbook.org.au/handbook/ch12s01s02.php Government of South Australia.” Dealing with Workplace Bullying: A practical Guide for Employees.” Last Modified on August 2012. http://www.stopbullyingsa.com.au/documents/bullying_employees.pdf Grace, Tom, and Fenwick Elliott Grace. “The Termination of Contracts for Breach.” Feg.com.au. Last Modified October 2010. http://www.feg.com.au/documents/TerminationpaperTRG10.10.pdf Queensland Government. “Prevention of Workplace Harassment: Code of Practice 2004.” Deir.qld.gov.au. Last Modified 2011. http://www.deir.qld.gov.au/workplace/resources/pdfs/prevention-workplace-harassment-cop-2004.pdf Tobin, Andrew, and Abigail Vipond. “Implied Term of Mutual Trust and Confidence held to be Part of All Australian Employment Contracts.” Findlaw.com.au. Accessed October 9, 2013. http://www.findlaw.com.au/articles/5263/hg-alert-implied-term-of-mutual-trust-and-confiden.aspx List of legislations Fair Work Act 2009 (Cth) s. 124 Work Health and Safety Act 2011 (Cth) s. 4, 19, 29 Read More