Employment Law Independent Contract and Fair Work - Assignment Example

Law Assignment: Name: Course: Tutor: Date: Case 1 1. The first issue is to see whether Juliet is an employee or not and if yes to whom. Juliet has been working for Allwork as a councilor but later attached to AB through agency work. She has also signed a contract with BA. It is indicated clearly by the common law, that all employees have a contract of employment with their employer they are working for. This contractual employment association co-exists with other statute-based forms of employment regulation, such as awards or certified agreements (see the Workplace Relations Act 1996 (Cth)) The court can argue that Juliet is an employee of Allwork. This is evident by the payment she receives from Allwork fortnightly. In addition to that, though the risks posed by the errands and the working situation is tedious, Juliet it is still the responsibility of the host employer, this can be circumvented due to the indirect connection between the workers and the employers because of the triangular relationship between the horde employer and the concrete workers. See Swift Placements Pty Ltd v WorkCover Authority of New South Wales (2000) 96 IR 69. Similarly, the court can put up the question that according to the contract Juliet signed, she is an employee of BA. NSW industrial Relations Commission apprehended that the workers employed by the contracting agency to be employees of an agency in spite of the fact that they were operating under the directions of the host employer. In conclusion I support the idea that Juliet is an employee of BA. This is where she has signed a contract. Arguments that she is an employee of Allwork are only supported by the fact that she is receiving her payment from them. This is not supported by any law. 2. The other issue is to establish whether restrictive covenant is enforceable to Juliet’s case if she is an employee of BA. The law states that restrictive covenant is only upheld when it can be shown that it is reasonable for both interested parties, in this case the employer and the employee. When dealing with restrictive covenant, a particular clause can be found to be unreasonable in its spatial area of restriction, length of time or degree of confidentiality. These factors can make restrictive covenant unenforceable. See Aurum Ceramic Dental Laboratories v. Hwang, 1998 CanLII 5759 (BC S.C.). In this case therefore enforceability of restrictive covenants will require several factors to be considerered. In Aurum Ceramic Dental Laboratories v. Hwang, Brenner J., it was found that after the contract, for restraint to be enforced, the courts require the party seeking to uphold the restrictive covenant to demonstrate that it protects a rightful proprietary interest of the employer and is reasonable for the two parties. In applying this to facts, the court may find restrictive covenant enforceable given that the employer provided the conditions in time and the employee accepted by signing. On the other hand, the restriction may be unenforceable bearing in mind that establishing the interest in not easy. The seminal case, Nordenfelt v.Maxim Nordenfelt Guns & Ammunition Co., the House of Lords sought to balance by illustrating that there must be a mode to justify it as being rational with respect to the interests of the involved parties. It is common knowledge that employers are entitled to protect confidential information, however the information used is that which is well known or is generic to the industry hence not considered confidential. BA therefore may not be able to objectively establish that information disclosed was confidential and would not be readily ascertainable by astute competitors. See Mercury Marine Ltd. v. Dillon, [1986] 30 D.L.R. (4th) 627 (Ont. H.C.J.). In conclusion restrictive covenants have constantly given rise to apprehension between the freedom of contract and individual autonomy and freedom of trade. My position in this case is that the restrictive covenant will be unenforceable in the case of Janet. 3. The last issue in this matter is to establish whether Dan was right by alleging that Janet was in the breach of her employment contract. The law requires that all employment contracts should contain such an implied term and if so, what conduct will constitute a breach of contract and what effect this has on the employer. (see the Workplace Relations Act 1996 (Cth)) Looking at the facts provided, Juliet would be in breach of contract if she had previously signed a contract with aforementioned conduct that leads to it; in this case disclosure of information. However the courts may also find Juliet not in breach of contract if there is no enough evidence on the prior information on what will constitute the breach of contract. It could be a case of Dan misleading. An employee who deceives or is engaged in acts of misleading or likely to mislead contravenes s 9 of the Fair Trading Act 1999 (Vic) (“FT Act “). In conclusion, looking at the facts in place, Juliet is not in breach of contract. Dan was therefore not right by claiming that Janet was infringing her employment contract. Case 2 1. The first issue is to look at the likely out come of a case if Bryn brings a case of unfair dismissal. Substantive law refers to the statutory law which governs the relationship between people and the state while procedural law is the set of rules followed when a court is hearing a case hence it dictates what will happen during a civil or criminal proceeding. According to the law, for an employee to be dismissed by an employer, there must be justifiable reasons as to why the employee is dismissed. Similarly, the employment contract should give a minimum duration for notifying employees before dismissal. This gives them procedural fairness. It is also required that employers should give three warnings before dismissing an employee together with clear evidence of poor performance discussed and agreed. See the Fair Work Act 2009 (Cth) In Australia, National system employees may take an unfair dismissal claim if their employment is covered by modern award, or their employment is subject to an enterprise agreement, or their rate of pay is less than an amount set out in the regulations. Looking at the facts and law requirement, it is evident that unfair dismissal claim is allowed in Australia. However not all employees can make unfair dismissal applications, there are a number of exclusions on when a person can make an unfair dismissal application. In this case, Bryn can bring a case of unfair dismissal because he is an active member of his union. I compare this to the case of David Quattrocchi v Monsato Australia Limited [2009] FWA 882 (12 November 2009) and Adam James Harley v Aristocrat Technologies Australia Pty Limited [2010] FWA 62 (7 January 2010) which reminds employers to carry out performance management and dismissal procedures well to avoid fetid of the condition set out in the FW Act for deciding whether a dismissal was fair or not. When determining whether termination was whether fair or unfair, the court will look at the whether the Bryn had been warned against the unacceptable performance before the dismissal. In this case, Bryn was notified and contacted several times including instances of written warning. This makes the court rule in favor of Kon containers. Kon Containers may have provided three warnings and evidence of poor performance but failed to make it clear to Bryn that his job is on the line or without giving him an opportunity to reply and/or improve his performance. This enables the court to believe that Bryn dismissal was unfair hence ruling in his favor. In conclusion, the case of bryn on unfair dismissal should be ruled in favor of Kon containers because Bryn had been warned against the unacceptable performance three times as required before the dismissal, unsatisfactory performance was discussed several time between Bryn and line managers. 2. The second issue is to look at the allegation of victimization between Bryn and Kon containers. There may be victimisation in the workplace; victimisation in employment is prohibited by legislation at federal and state level. It is covered by the anti-discrimination Act 1992 (Cth). The court can rule in favor of Kon containers believing that Kon containers is bound to observe discrimination legislation provisions as far as race discrimination is concerned and as covered by Section 342, Fair Work Act. It cannot breach the NSW anti-discrimination law as it knows there are conviction and involvement in contested discrimination case, which is costly in terms of time and money or even court proceedings. This will indicate that the issue is about Bryn’s performance which was dismal in the company. This will be supported by the various evidence of unsatisfactory performance discussed between Bryn and line managers. Similarly the court can rule in favor of Bryn who is complaining of discrimination and is evident because not all employees were affected by the reshuffle. Therefore Bryan is either discriminated on the grounds of nationality or any of the mentioned grounds; hence he can make complaints to the Equal Opportunity Commission that will try to privately resolve the complaint by conciliation. If settlement cannot be arrived at, then the case can be referred to the Equal Opportunity Tribunal for a public hearing and decision. In conclusion Bryn case of victimization should be ruled in favor of Kon containers because there is clear evidence of continuous efforts by the employer to correct the dismal performance of the employee through warnings and necessary discussions as required by the law. Reference Benson, J., Griffi n, G. and Soares, K. 1989, The Impact of Unfair Dismissal Legislation in the Victorian System, 2 AJLL 141 Chapman, A. (2009). Protections in Relation to Dismissal: From the Workplace Relations Act to the Fair Work Act. UNSW Law Journal, 746-771. Equal Time newsletter of anti discrimination board of New South Wales no. 66 autumn 2006. Retrieved from http://www.lawlink.nsw.gov.au/adb [on 22/09/2011] Insight Employment & Industrial Relations March 2010 retrieved from http://www.holdingredlich.com.au/assets/docs/Insight_Employment_Industrial_Relations_March_201 2.pdf on 21/09/2011 Johnstone, R., & Quinlan, M. (2005). The OHS Regulatory Challenges Posed By Agency Workers: Evidence from Australia. National Research Centre for OHS Regulation , 2-33 Pickering, M. (2010, April 15). Employment Law - Unfair dismissals under the Fair Work Act - Common Law Contracts. from: http://www.laclawyers.com.au/document/Employment-Law-__-Unfair- dismissals-under-the-Fair-Work-Act-__-Common-Law-Contracts.aspx [Accessed September 21, 2011,] Cases Adam James Harley v Aristocrat Technologies Australia Pty Limited [2010] FWA 62 (7 January 2010) Aurum Ceramic Dental Laboratories v. Hwang, 1998 CanLII 5759 (BC S.C.). David Quattrocchi v Monsato Australia Limited [2009] FWA 882 (12 November 2009) McDonald v State of South Australia [2008] SACS 134 Nordenfelt v. Maxim Nordenfelt Guns & Ammunitions Co., [1894] A.C. 535 (H.L.). Swift Placements Pty Ltd v WorkCover Authority of New South Wales (2000) 96 IR 69. Read More