Assignment Question 1

Davy commenced employment with ABC in November 2010. He was employed as a cleaner on a full time basis up until August 2017. In that month he resigned from his employment in writing. ABC had asked him to contract his services to DEF, telling him if he didn’t resign he would not be provided with any more work. Davy also signed a letter stating that he understood the information supplied to him and agreed to accept the DEF offer as detailed in an information pack delivered to him. At a meeting of ABC employees the manager told Davy and other employees that nothing would change.

Davy understood he was a sub-contractor but was not clear on who he was contracted to, since ABC still issued his work allocations and provided his cleaning materials and equipment.  He was also supplied with a uniform, which he was allowed to wear if he wished, or not if he didn’t. He usually wore his uniform. Davy still drove an ABC van and used a mobile phone they supplied. He worked at the same sites he always had.

Last week ABC called him in to their office and told him he was no longer needed.  He received no notice and no payment.  There was no explanation given, and Davy believed his performance was not a factor since it was not mentioned.

(a) Was Davy still an ABC employee? Refer to cases that use the current common law test

(b) If we assume Davy is an employee, have ABC breached any federal legislation in relation to requiring him to contract to DEF?

(c) If we assume Davy is an employee, does ABC have an obligation to give Davy any notice on termination, under common law or legislation?

Assignment Question 2

PRX is a public relations company in Perth.  They sell various services to businesses who want to improve their public image.  Stella is one of their full time salespersons.  She signed an agreement at the end of 2012, to operate from 1 January 2013 until 31 December 2016, stating that she was not an employee and that she would abide by all PRX rules. Until recently, Stella wore a shirt that had a PRX embroidered logo and received an agreed percentage of all sales she made. She also received a small base payment on a monthly basis. Stella paid tax on that income directly to the taxation department.  PRX recommends their workers register a business name for these purposes.  Stella had no set hours and used her own car to visit clients.  She maintained her car and received no allowance for its use.  PRX has not trained her or the other salespersons, rather they attend a specialized training agency and PRX pays for it.  Stella was required to have her mobile phone with her at all times for work reasons, and she answered calls from PRX and clients at all hours. She was able to claim a top up payment where work took weekend and public holiday hours, as it always did.  Stella never discussed her entitlement to personal leave or holiday leave in the four years she worked for PRX and they have never offered her any paid holidays.

On December 1 2016 Stella had a stroke and will not be able to work at all for the foreseeable future.  The doctor determined it was due to her high stress level, her obesity and the fact she has had no holidays or weekends free from work for a long time.  

(a) Is Stella an employee or another type of worker? Use the current common law test.

(b) If we assume Stella is an employee, is PRX in breach of a common law duty in relation to not giving Stella any days off work or holidays?  

(c) If we assume Stella is an employee, does she have an entitlement to notice, at common law or legislative, if PRX decides to replace her?