BSL202 Workplace Law

Issue

The main issue in relation to the provided situation is whether Ruby is actually an employee, or any other kind of worker, as indicated by her agreement.

Rule

In Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 37 IR 380[1], the organization named Troubleshooters essentially made it very clear that it was never the intention to consider its workers in the role of its employees. The workers had never been paid any wage on a weekly basis, and they also did not obtain any normal benefit of any paid or salaried employee, mainly sick leave and annual leave. It was further stated no obligation existed upon any individual registered with the organization to work at any said time. Similarly, no obligation actually existed upon the organization to find any kind of work for the individual on any specific day.

In Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1[2], the High Court essentially overturned the decision that was forwarded by the Full Court and ruled that the particular worker should be considered as an employee in relation to the specific labour hire company. It had been elaborated by the court that even though it was very clear that the specific written or inscribed terms of the particular contract will normally regulate and determine the specific relation, it was ultimately found by the High Court that after completing a proper analysis or evaluation, the specific terms in the said independent contractor agreement essentially resulted in an employer/employee relation, irrespective of the utilization of the ‘contractor’ status or label.

In the determination of a worker as an employee or an independent contractor, the multi-factor test is the most relevant test. In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513[3], it was said that control itself is not the only determining factor in a multi-factor test, and other pertinent factors encompass the provision and care of equipment, remuneration, the duty and commitment to work, the working hours, the deduction of the income tax, and the provision for the holidays, and others. A similar ruling was also forwarded in the case of Hollis v Vabu (2001) 207 CLR 21[4].

Application

In the given situation, Ruby was a full-time designer of Boom Design Pty Ltd, who signed a specific agreement, which stated that she shall not be considered as an employee and all the rules of Boom Design shall be followed by her.

Applying Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 37 IR 380[5], a specific contract certainly exists amidst Ruby and Boom Design, which specifies that Ruby is not an employee. Hence, Boom Design essentially makes it very clear that it was never the intention to consider Ruby in the role of an employee. However, Ruby was paid a wage on a daily basis, and she obtains normal benefits relating to legal aspects and tax purposes. Furthermore, Ruby was certainly given fixed hours for working purposes, and it was the obligation of Boom Design to find any kind of work for Ruby on any specific day.

Applying Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1[6], it should be said that the Ruby should be considered as an employee in relation to Boom Design Pty Ltd. It must be said that even though it was very clear that the specific written or inscribed terms of the particular contract that Ruby shall not be considered as an employee, after completing a proper analysis or evaluation of Ruby’s nature of work, the agreement amidst Ruby and Boom Design could essentially be considered as that of an employer/employee relation, irrespective of the utilization of the specification that Ruby is not an employee.

In the determination of whether Ruby is an employee or an independent contractor, the multi-factor test is the most relevant test. Applying Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513[7] and Hollis v Vabu (2001) 207 CLR 21[8], it must be said that control itself shall not be the only determining factor case of Ruby. Ruby was certainly tasked with the provision and care (maintenance) of equipment, she was provided with remuneration, there was a duty and commitment upon Ruby to work, Ruby certainly had fixed working hours. Boom Design even recommended that the workers shall be required to register for tax purposes and the income tax shall be deducted accordingly. Hence, based on such nature of work, Ruby can be considered as an employee.

The issue is whether the behavior or conduct of Ruby has actually warranted her dismissal. In Toms v Harbour City Ferries [2015] FCAFC 35[9], it had been stated that the particular dismissal of the concerned employee was certainly fair as well as for a proper and valid reason. The reason was that the concerned employee caused a violation of a specific employer policy, and hence, the decision relating to the dismissal of the employee was well founded, sound and defensible. Such ruling was also forwarded in the case of Selvachandran v Peteron Plastics (1995) 62 IR 371[10]. In this case, it was also said that an employee could certainly be dismissed based upon well founded, sound and defensible reason.

In the case Moitzi v Paradise Motor Homes [2015] FWC 3413[11], it had been stated that identifying or finding a valid reason shall not routinely make any dismissal just and reasonable. Even when there might be a valid and proper reason, in few cases, a specific dismissal shall still be considered to be unjust, unreasonable or harsh, as there will be other factors that has to be taken into consideration, for instance the issue relating to procedural fairness. In the above said case, it was held that the specific dismissal was not reasonable because the concerned employee was never notified that dismissal was actually being intended and considered due to his attitude and defiance regarding the faulty switch. He never received any kind of notification regarding the reason in connection to his dismissal. Moreover, he was not provided with any kind of opportunity to give response to the specified reason. The employee never received any kind of written warning regarding his failure in relation to the job.

Application

In the provided situation, Ruby posted a comment as a reply to the question of a client, and linked Boom Design, consequently violating the said social media policy. Applying the case of Toms v Harbour City Ferries [2015] FCAFC 35[12], the dismissal of Ruby could be considered as fair as well as for a proper and valid reason because the social media policy was clearly communicated to every employee of the organization. Ruby caused a violation of the specific social media policy, and hence, the decision relating to her dismissal could be considered as well founded, sound and defensible. Even applying the case of Selvachandran v Peteron Plastics (1995) 62 IR 371[13], it could be said that Ruby was essentially dismissed based upon well founded, sound and defensible reason. However, one can consider the dismissal of Ruby to be harsh and hasty. In such regard, the case quoted as Moitzi v Paradise Motor Homes [2015] FWC 3413[14] can be considered as an applicable case.

Making application of the case, it must be stated that identifying or finding the valid reason in case of Ruby shall not routinely make her dismissal just and reasonable. Even if there is a valid and proper reason in case of Ruby, her dismissal shall still be considered to be unjust, unreasonable or harsh, because, in Ruby’s case, other important factors were not taken into consideration, for instance the issue relating to procedural fairness. Applying the above said case, the specific dismissal of Ruby was not reasonable because she was never notified that her dismissal was actually being intended and considered due to her defiance and violation of the social media policy. She certainly did not receive any kind of notification regarding the reason in connection to her dismissal. Moreover, she was not at all provided with any kind of opportunity to give response to the specified reason and defend herself. Ruby never received any kind of written warning regarding her failure or violation in relation to the social media policy.

Conclusion

In the conclusion, it can be said that the behavior or conduct of Ruby has certainly not warranted her dismissal in such a haste manner as she was not even given any warning.

Bibliography

Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 37 IR 380.

Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1.

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513.

Hollis v Vabu (2001) 207 CLR 21.

Toms v Harbour City Ferries [2015] FCAFC 35.

Selvachandran v Peteron Plastics (1995) 62 IR 371.

Moitzi v Paradise Motor Homes [2015] FWC 3413.

[1] Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 37 IR 380.

[2] Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1.

[3] In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513.

[4] Hollis v Vabu (2001) 207 CLR 21.

[5] Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 37 IR 380.

[6] Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1.

[7] In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513.

[8] Hollis v Vabu (2001) 207 CLR 21.

[9] Toms v Harbour City Ferries [2015] FCAFC 35.

[10] Selvachandran v Peteron Plastics (1995) 62 IR 371.

[11] Moitzi v Paradise Motor Homes [2015] FWC 3413.

[12] Toms v Harbour City Ferries [2015] FCAFC 35.

[13] Selvachandran v Peteron Plastics (1995) 62 IR 371.

[14] Moitzi v Paradise Motor Homes [2015] FWC 3413.

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