Workplace Law - Assignment Example

Case Study First Issue From the case study, Jim performs the tasks in Lou’s companies and acts under guidance and control of Lou, as such, Jim is an employee of Lou. Linguistically, an employee is an individual employed and entitled wages or salary like Jim. According to the Australian Federal Acts clause 24.20, Jim regards as both an employee and a contractor subject to given characteristics. The terms signed between Lou and Jim qualifies Jim as an independent contractor. However, the manner in which Lou controls Jim’s work proves that Jim is an employee. In addition, Lou pays Jim based on his services, an indication that indeed Jim is an employee. Payment as a reward for labor fits Jim as an employee to Lou. The Australian Fair Work Act 20091(FW Act) under contract of service, Jim is an employee since Lou directs and controls the manner in which he undertakes his duties. Jim worked within the standard hours and paid a daily wage as a means of hiring his services a proof that indeed he is an employee. Independent contractors2 have no minimum wage and must submit an invoice for work completed before a company honors payment. Jim had a minimum wage that Lou paid him on a daily basis. He did not submit any form of invoice before payment, proof that indeed Jim was Lou’s employee. According to the Minister of Social Security vs. Market Investigations Limited (1969) 2 QB 1733 a taxpayer is an employee. An employee earns a salary as a reward for his or her labor in terms of services delivery. From the case study, Jim was to pay his taxes, a proof that indeed he was Lou’s employee. Jim worked for eight a hours as week like the other employees and casual workers in Australia. The compliance to working eight hours a week without day off proves that Jim was an employee to Lou. Jim therefore regards as Lou’s employee despite the terms written in their agreement terms indicating that he approved working as an independent contractor. Lou has an obligation to ensure a safe and conducive working environment for Jim who is his employee. The legal case presented and the provisions of the Acts cited prove that Jim was an employee to Lou. Second Issue Lou as the employer has an obligation to follow contractually the Employee Handbook procedure in relation to the bullying complaint comprehensively. Australian Federal law on anti bullying covers all employees, interns, independents contractors and every kind of worker offering their services to an organization under an employer. The contract binds the employer to protect and observe the terms signed under the contract to ensure a friendly and convenient working environment for the employees. Jim signed a contract to work as an employee to Lou hence Lou must observe and ensure not to violate any of Jim’s right. A case example is the court suit of Ms. Keegan vs Sussan Corporation4. The court ruled in favor of Ms. Keegan based on principle of the law of negligence asserting that employers must take reasonable care for the safety of employees. Lou therefore must strive to protect Jim as one of his employees to ensure no violation to Jim’s rights takes place. Lou extended Jim’s duties to supervise two juniors. The two juniors’ exercised misconduct and use of a demeaning language that made Jim upset. The ant bullying policies that Lou introduced to his organization will begin to take action since Jim previously registered a report to the effect to Lou, the employer. The will investigate the issue and engage the two juniors positively to establish the real cause of the bullying. After the investigations, Lou has a responsibility to execute an action based on the provisions of relating law. Failure to execute law complaisant penalties, the juniors has a right to file apply to Federal Circuit Court (FCC) to deal with the case5. A case example is the ISS Security Pty Ltd vs. Naidu and Anor (2007) NSWCA 3776 case of December 2007. The employers have the knowledge of the kind and nature of bullying transpiring within their organizations. Lou knew the nature of bullying the two juniors subjected Jim to, hence had a responsibility in responding by taking the most appropriate action. The employers have the responsibility of ensuring a safe and conducive working environment favorable to their employees within their organization. A friendly environment secures the rights of the employees working within the environment. Lou remains legally liable and by the law provisions is answerable to the actions and shortcomings arising from their failure. It is evident therefore that the employers have a responsibility to ensure a safe and friendly working environment for the employees. The employers achieve this by effectively implementing the anti bullying policies within their organizations. Third Issue From the case, it is clear that Lou has breached the contract of common law of care to his employee, Jim. The breach has risen despite him not being contractually bound to follow the employee handbook procedure. Employers like Lou are legally liable for their negligence or for a breach of the common law if they allow bullying actions to occur within their organization. Common law asserts that courts address a variety of issues that revolves around the working environment7. The law consists of decisions made by a panel of judges concerning all the relevant possible cases. It also outlines the rights, limits, and responsibilities that employees. In the common law, Lou has responsibilities that he should undertake as an employer towards the well-being of Jim, his employee. Jim also has a role to play to ensure his well-being. In Riley vs. Australian Grader Hire (2000) 103 IR 143 at 145, the court upheld s 15 of the occupational Health and Safety Law8. The Act requires employers to be diligent and proactive to ensure the safety of their employees. Error or negligence of an employee does not affect the obligations stipulated in the Act. In the same manner, Lou remains answerable incase of shortcomings arising from his obligations towards Jim. Lou as an employer had it as an absolute obligation to toe to the terms and statutes of the Act in his position as an employer. The Occupational Health and Safety Act of the Australian law imposes a strict duty, obligation and liability on the employers. The employers play a significant role in ensuring the safety and well-being of their employees. In Carrington Slipways Pty Limited vs. Callaghan (1985) 11 IR 4679, the court in referred to section 15(1) of the Act in upholding its ruling. The court ruled that it was an absolute liability of the employers to conform to the statutes of the Act. It is, however, essential to verify whether the employer failed in the language of the section in at least one of the many compulsions laid upon them. The leader also has a direction and guideline to take care of the common law. The ISS Security Pty Ltd vs. Naidu and Anor (2007) NSWCA 377 case example upholds that employers are aware of the loopholes existing within their workplace. Lou was aware of the unfriendly environment that existed within his organization. Failing to timely address, it is a breach of the contract of care. Lou therefore assumes full responsibility and liability for Jim’s resignation. The common law protects the employees and makes it a responsibility of their employees to ensure their security10. The employers must act according to the provisions of the common law in the delivery of their services. 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Last Modified 2015. http://www.mclaughlins.com.au/guide-manage-bullying-workplace/ NSW OHS Act Review 2005. Occupational Health & Safety Act 2000 Review 2005. https://www.nswbusinesschamber.com.au/NSWBC/media/Misc/Lobbying/Submissions/OHS-ACT-2000-Review-Aug-2005.pdf The Australian Workers’ Union. Employment Legislation That Affects You At Work. Last Modified 2015. http://www.awu.net.au/employment-legislation The Fair Work Commission. Fair Work Commission Rules 2013:Employer Response To An Unlawful Termination Application. Last Modified 2015. https://www.fwc.gov.au/documents/documents/rules/FWC_Rules.htm#Pt-5.22 Read More