The Common Law in Determining Who Is an Employee - Essay Example

Employment Law 7906 and 9695 Student Name Tutor Course Institution Date Employment Law 7906 and 9695 Question 1 a) Do the unfair dismissal rules apply to his business? He heard something about small businesses being exempt, but does this apply? According to the national legislation, unfair dismissal occurs when an employee is dismissed in an unreasonable and punitive manner. To say that the dismissal was harsh or punitive is to say the impact that it had on the affected employee is unfavourable or the treatment was not proportional to the alleged misconduct1. Additionally it could be because the employee was never guilty of whatever he is being accused of. When it comes to small businesses they are not entirely exempted from unfair dismissal rule. This is because they are guided by the small business dismissal code. This code came into operation in the year 2009. The code is established under the Fair Work act. An employee can lodge a claim for unfair dismissal and if it is found that it contradicted the small businesses fair dismissal code then they will be liable to pay. This code is very categorical in that for an employer to dismiss an employee there must a reasonable ground to argue that the employees conduct is serious enough to warrant dismissal without notice or warning2. Some of the grounds provided in this code are theft, fraud violence, and breach of safety and health procedures. The reason provided by Robert for his dismissing the young man merely sounds like personal beliefs3. The Text says that just because he is a traditional man he does not feel right to see two boys fight over his teenage daughter. He does not even have evidence whether this is a case of sexual harassment or not. This puts him in a difficult situation should the young man lodge a claim. But again Robert is given an upper hand by the Fair Work Act which stipulates clearly that people who are working as training contract cannot lodge a complaint. Mr Crunty is not a full time or even says a casual employee at the bakery; he is simply a student on attachment for eight months. Going by this, Robert may argue against him using this point. However it is important to note that the small business code also states that employees need to be warned and be given a chance to respond to the warnings or a chance to rectify the problem. This also means that an employer may have to provide training about the issue in question so that the employer is aware of the job expectations. The small business code also provide that in cases an employee may have to be dismissed eventually then the employer has to follow the due procedural process4. For instance when talking to the employee about the dismissal or giving warnings he must ensure that there are others present as witnesses5. b) Is he liable for the unfair dismissal and what would be his potential liability if Crusty’s application were successful? According to the small business fair dismissal code it could be Mr Crusty is not liable for dismissal. This is because of the weaknesses in the reason of his dismissal and failure to use the right procedure. Taking the example from the case of Dent v Halliburton Australia Pty Ltd (2014) FWC 5692, despite Mr dent being found guilty of talking on the phone while driving he was still awarded 11 weeks of wages on the ground that there was he wasn’t given enough time to attend to the disciplinary meeting. This also applies to Mr Roberts’s case because he did not give the young man time to respond to his claims which are mostly personal. While the small business fair dismissal code allows for a summary dismissal, the case in point she does not qualify for such. The reason why the young man is fired is because Robert feels protective of his daughter. Another case which sheds more light to what is the likely to happen here is in Anderson Vs Thiess Pty Limited (2014) FWC 6568 A 65 year old was dismissed on the ground that he sent an offensive email which could have cause his company reputational damage as it sounded offensive to the people of Muslim faith. Surprising he was a given a compensation of 28000 dollars on ground that at his age it was going to be hard for him to secure another job. Again Thiess was faulted for heavily relying on verbal warnings he had given earlier about such conduct and lastly he wasn’t given a chance to apologise for his behaviour. I think this case gives Crusty an upper hand. He is in his first year with eight months of service. At the time of service e had already through with six months. It would be argued that it would be difficult to find another place to fill in the three months as it’s a requirement that students are assessed after eight months of service. The dismissal was based on feelings and not facts. Robert did not give the two young men a chance to explain themselves; they were dismissed out of anger. Additionally the Fair Work Act requires employers to have policies and make them clear through training. Failure to have policies on sexual violence and making employees aware of them can result into detrimental acts6. The text clearly states that Robert does not have a policy on Sexual Harassment. More so it’s not clear whether the teenage girl is exactly what age. Is she 18 years and above of which she qualifies to be an adult who can make informed decisions on her own. Secondly if she is under 18 it means Robert may get in trouble for getting involved in child labour. Again there is need to provide procedural fairness. Procedural fairness includes the opportunity to respond to evidence Take the example of the case where a lady turned up to work while being drunk after the Melbourne cup. When the case was brought to the FWC the employer was asked to provide proof for the allegation as well as procedural awareness. So this is to say even where there is a valid case like in this case could be the two boys are seeing the teenage girl; but the breach of the procedural fairness will in the end weaken the case. According the Fair Work Act and other regulations that guide work relations; procedural fairness includes; having a valid reason to dismiss an employee, forward the allegation to the employee in writing, give them an opportunity to reply, allow them to have a witness present and then give any circumstance that should inform the decision before taking the necessary step of ether dismissing or providing a warning7. In the case provided the procedural fairness steps were not followed. His decision to terminate the two young men was based on his traditional beliefs of not wanting someone mess up with his daughter. There is no evidence that the young men had earlier been given warnings or they were called in a meeting to discuss the issue. The decision by Mr Robert was taken unilaterally without determining their work performance and the fact that they are students and that they be assessed by being attached to his bakery. One is a third year student and the other in the first year that is on eight months placement. It is important to also realise that casual workers may also be covered by unfair dismissal laws8. Perhaps Mr Robert may overlook this fact. This is so especially where the casuals have been working for a company for a very long term and they are expecting that they might be confirmed in the near future. A case in point is when James McKinnon was awarded a whopping 7000 dollars from the Crest Hotel In Sylvania, after the Fair Work Commission argued that he was covered by unfair dismissal laws because he worked regularly and systematically and it was expected that he will continue to work similar shifts in the future. In the case of Robert and his employees there is no indication that the two young men were not carrying out their duties well. There was no evidence of laxity at work; the only thing that Robert noticed is some tension between them. If the tension wasn’t affecting their performance at work it would be hard to argue in favour of the dismissal. c) What approach should he take if he wants to settle with Crusty? Mr Robert could ask for an out of court settlement where he will then allow Crust to finish his placement while he asks the daughter to take leave. d) Is there anything else he should be worried about? He should be worried that his company may be challenged to be in the category of small businesses. He has three bakeries with only 6 bakers. This could be taken as a case of understaffing. He should also be worried about employing his own daughter who may be under age or unqualified for this kind of work Question 2 The common law, in determining who is an employee, still places considerable emphasis on the concept of control.” Analyse and discuss. The common law that is in operation in Australia was gotten from Britain. It was adopted from what is considered as the first human rights treaty of Europe called the Magna Carta of 1215. The common law was meant to put the power of the king as well as to regulate the rights of the common citizen. In many cases is referred to as the judge law because it’s made in courts and not parliament although the legislature can expand or minimise these laws. When it comes to employment in Australia the common law plays a very important role in the way it imposes the concept of control ranging from the way contracts should be drafted, compensation, work place relations, hiring and dismissal and administration of disciplinary actions on employees9. According to the National employment standards one is an employee whether they have a biding written agreement or a verbal one. However, when drafting a common law contract it’s important to keep the concept of control in mind. Employers need to ensure that their employees have a written contract10. It’s not right to just keep relying on a verbal contract especially if its going on for years. Even where an employee is covered by the national employment standard or modern award, the concept of control requires that his contract should be in writ confidentiality are so crucial to your business then it would be important you have a written work agreement11. Besides, the common law still applies in situations where the employer wants to make amendments to an already existing contact. The common law provides that there is no way an employer can withdraw already existing privileges. Say the employees were entitled to ten day sick leave, it’s not possible to reduce the days because if you then the employees are likely to revolt. The argument is that where the contact provisions are better than the National employment Standards then they have to be upheld. A contract amendment should not downgrade favourable provisions in any way. And even where the contract has to be amended by adding some extra responsibilities, the common Fair Work Act, National Standard of employments in conjunction with the common law stress that the employees should be informed of the changes, given time to go through them before appending their signatures12. This simply put is that employers are restrained from making unilateral amendments to an already existing contract. Employees need to be given time to review the new contact so that they understand what it is they are entering into. The common law also protects those that are entitled to the modern award. If the contract reads that an employee is entitled to a modern award and the provision therein clearly stated then it’s going to remain so even if the employers feel that they need to make changes to the contract. That’s why some lawyers advise that because the social and economic context may change which may require that the contact be revised, to avoiding getting in trouble with the common law provision, employers should avoid incorporating the provisions of the modern award in the contract. Employers need to understand that employment contracts cannot contain ay terms and conditions that are less favourable to an employees and do not respond to the award the employee is entitled or the law under which that contract operates be it Fair Work act or National standards of employment13. The concept of control also manifests in situations of misrepresentation duress and undue influence. The common law is very categorical withholding information or giving false information before a contacts is signed could make it invalid. Sometimes such cases occurs when a very powerful employer uses his position to give false information which then makes an employee to sign a contract that he would have not signed. The common law defines duress as “duress in the context of contract law is generally understood to be action or the threat of action by a person intended to coerce another person to become party of a contract”. Then it follows that both accounts of duress and undue influence can be used as grounds to terminate an already signed contract. When it comes to termination of employment, it’s a bit complicated. The Fair work Act has set regulation on how dismissal should be carried out. For instance and employee should be given warnings in writing. The reason for dismissal should also be substantive. Additional the procedural process should be followed to the later. This includes allowing the employee in question to respond to the claims or given a chance to change if he promises to do so. Another important consideration of the common law is that employees should ensure that whatever the terms of the contract they should be captured in a written manner. It’s not fair for an employer to write some conditions in the contract but keep updating the contract in a verbal manner. This also applies to where some contracts require that they be in written form before they are enforceable. Additionally, the due procedure needs to be followed to the latter. An employer should not ask an employee to just commence the duties when an offer is made and yet the contract has not been written and ratified. The concept of control should also be adhered to when it comes to contracting minors. This is because we have some states that have very strict education policies that area against employing children under the age of 1814. This is not to say that junior cannot be employed. Take the example of a farmer who asks his own children to help out in the fields that is not against the law. Moreover most legal provisions have allowance for contacting juniors. The same applies to people with disability. Even people with mental disabilities may enter into employment contracts but the common law allows them to terminate the contract if they can prove that they entered into the contract without proper knowledge15. Question 3 a) Advise Elizabeth in relation to her concerns. First of all an Elizabeth needs to understand her rights when it comes to entering into an enterprise agreement. There are important facts that she can use to make her case. This will range from what is allowed under the Fair Work Act to be part of the contents of an enterprise agreement. To begin with the Fair Work Act states that an enterprise agreement should include terms that will define the relations between the employer and the employee; terms of relations between each given employer and say trade unions; any authorise deductions that gare relevant to the agreement and the terms define how the agreement will operate16. Going by what is stated in Elizabeth’s case, it is very clear that the enterprise agreement has some loopholes because it only states the deductions but gives very little details about its operation, how work relations will be undertaken and the palace of trade union in the whole agreement. It seems the employer is not willing to engage the union even when the law provides for it 17. Secondly the Fair Work Act provides that such an agreement should be clear about how dispute resolution will be carried out in the event there is something of the sort. The agreement in question is lacking in this sense and that is why they are already hitting a snag even before they start working. The law provides that the Fair Work Commission or an independent arbitrator should be called upon any case there is any dispute18. The case here lacks this component which explains why they have a stalemate. This is so because Elizabeth is covered under the modern award and the National standard of Employment. There is no way the dispute cannot be handled by and arbitrator. Otherwise she stands a chance of being short changed in the whole deal. Additionally an enterprise agreement needs to have an expiry dated which should not exceed more than four years since it came into place19. Already the time provided in this case the agreement exceeds that four year limit which makes it illegal. Another important consideration that Elizabeth needs to know as she makes her case is that the enterprise should have allowed for a flexible time for each of the employees to make what is called the Individual Flexibility Arrangements (IFAs)20. These arrangements are made between the employer and each employee so as to make sure the genuine needs of each employee are out into consideration. It’s clear that the employer in this ace did not provide for this and that why Elizabeth feels that there are some things that are not weights. The agreement is also lacking in the sense that there is nowhere the employees are given a duration of time to allow consultation between them and the employer especially as regards the major changes that are given about their working hour, wages any privileges and entitlements21. During such consultations employees are entitled to representation which in thus case there is a trade union. In fact this agreement is not enforceable because it serves to deny employees their rights. As aforementioned a contract cannot be amended downwards; meaning that a new contract cannot get rid of the favourable entitlements that are already in place22. This is especially if the contract has a modern award with specifications of the award. Elizabeth needs to know she is not under any obligation to sign the enterprise which appears to be rogue. Additionally her employer cannot terminate her employment without a good reason or the due process23. She is fully protected under the Fair Work Act and if she feels aggrieved she can lodge a complaint with them. The law provides that the Fair Work Commission has the power to review any enterprise agreement that has unlawful contents. Besides, as an employee she has a right to vote against an agreement she is not in agreement with because may be she feels it is not putting into consideration her needs. Advice to the Union in relation to what they may do regarding this situation. The union needs to understand its role in an enterprise agreement. The law is very clear that during the drafting of this agreement the union, employees and the employer need to sit down and make a bargain24. The union is very much given the power to have a say in the enterprise agreement. This is especially so because the employee in this case who is Elizabeth still hold term as her bargaining representative. The fair Work Act also gives the trade union the mandate to write the Fair Work Commission just in case they have to present low pay or other work place claims on behalf of their client. The work of the trade union is to ensure that the agreement adheres to the stipulated Fair Wok Act and the National Standard of Employment in the manner in which they are drafted. For instance the trade must be on the look out to ensure that their claims as regards the agreement are responded to in good time. They have right to the most confidential information which entails in the agreement. This is important because the trade union is also covered under the trade agreement. The trade union should understand that the enterprise agreement will eventually have to be approving by the enterprise agreement. They should then do their research well on the contents of the agreement so that should their efforts to have the employer listen to them then they can lodge a petition with the Fair Work Commission. It is the responsibility of the union to ensure that there are no loop holes in the procedure preceding the signing of the enterprise agreement. If the timelines are not respected they have the power to stop its signing by approaching the Fair Work Commission. This is because it’s their responsibility to explain to the employee the right steps that the enterprise goes through before its signed. Read More