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Law Of Business Organization Case Of Donald

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Questions:

1.Whether Donald would still be Considered as a worker of ABC Corporation or not?

2.On the assumption of people that Donald was an Employee, then Whether ABC company have contravened any Federal Regulation for Forcing Donald to Contract with DEF or not?

3.If the Individuals Presume Donald as an Employee then Whether ABC have under Common Law or legislation a duty to Provide Donald a Notice of Termination or not?
 
 

Answers:

1.It has been clearly affirmed that for determining whether a person would be considered as an employee or an independent contractor at law, primarily it requires the applicability of the common law test.

The Common law test for determining whether an association was one of the independent Contractor or the employment was defined as the multi factor test (CPA Australia, 2017). This includes recognizing and evaluating a number of features of the association to determine where the stability prevails (Australian Government, 2017). So, there have been certain features which the tribunals have considered for determination such as:

Basis

Employee

Independent Contractor

Contract

An employee under employment law has a contract of service.

The independent contractor on the other hand has a contract for service under the prescribed law.

Delegation

The employee could not delegate the task to other individual which was assigned to him.

The Independent contractor could delegate his work to other individuals if he wishes to.

Control

The employer has a full fledged control over an employee as he carries out an allocated job for a settled cost.

The employer has no authoritative controlling capacity over the working duration or the manner in which the task was done by the independent contractor (FMW, 2017).

But it also includes certain other tests to be kept in mind while determining the status of a person to be an employee or the Independent Contractor such as:

Primarily, it has been observed that the courts have been using a conventional test which was also regarded as the ‘control test’ (Australian Government, 2017).

It was clearly established in the Zuijs v Wirth Bros Pty Ltd(1955) 93 CLR 561 that a right for exercising control, rather than the exercising distinct control was recognized as a crucial factor and was a tough symbol of a relationship which subsists among the employer and the worker.

Another test i.e. the ‘integration test’ categorizes workers on the basis of their amount of contribution into the business. Similarly, if a person wears a uniform then it could be a sign that he was an employee.

But, a preferable test which was prevailing in the state for determination was the multiple indicia test as the same was affirmed in the matter of Stevens v Broadribb Sawmilling Co Pty Ltd and was afterwards was established in Hollis v Vabu Pty Limited.

So, by applying the multi factor test it could be concluded that there were features for both the employer and employee association, therefore it was merely a case of considering these factors.

2.Under the Fair Work Act 2009, the common law concept of constructive dismissal, permits for a judgment that a worker was observed to be dismissed in circumstances where:

The employer clearly asks the worker to resign or he would face a endangered or imminent discharge, or;

The act of the employer may leave the feelings of the worker that he or she has no practical option but to leave (Dundas Lawyers, 2014).

Similarly, such a situation would prevail when the actions of the employer were so detrimental, unpleasant or distant to the agreement of service under employment and the association of employment that the worker could not be predictable to cope up with the same (Thornton, 2014).

For example, when an employer makes the life of the worker tremendously hard, to make an effort to have the worker leave, rather than absolutely firing the worker, the employer was trying to enforce a constructive discharge.

In Hobbs v Achilleus Taxation Pty Ltd ATF the Achilleus Taxation Trust; Achilleus Accounting Pty Ltd ATF the Achilleus Accounting Trust [2012] FWA 2907 it was concluded that it was the employee who has to illustrate that the major causative elements which have led to the resignation of the worker was the action of employer. The actions must be confirmed to have been unwaveringly and unavoidably resulted in the resignation of the worker. Similarly the employee would have sustained to be occupied but for the hypothetical act (Squire Patton Boogs, 2013).

 


Also, the resignation of the employee must also occur unswervingly after, the protested act of the employee which could be said to have recognized as the continued survival of the employment contract.

But such a concept of Constructive dismissal repeatedly forms the basis of "dismissal-related" claims such as unfair dismissal or a violation of the universal safeguarding provisions of the Fair Work Act (Minken Employment Lawyers, 2017).

A current instance was the case of Foster v Sushi Tribe Pty Ltd T/A Pacific Retail Management [2016] FWC 2201 in which it was confirmed that the Fair Work Commission have stated that the claimant was constructively released by the employer form the employment.

Similarly, all such cases also make it comprehensible that managers would require to vigilantly considering their actions when they make a decision under which they wish to be discharge for the act of the employee. There was scarcely ever a low-risk easy way which could have replaced good organism without a job discussion (Legal Vision,2016).

3.A notice to given at the time of termination has been defined as an endorsed, printed notice stating that a person was terminated from the job and would no longer be working a a employee. But for terminating a person reasons must be stated (HopGood Ganim, 2015).

Also, each time an employee would be asked to leave then such person would be allowed to have a notice or expenditure in lieu of notice from the employer. Such a notice must be provided by the employer as he was obligated to do so.

Similarly, if the employer fails to give notice as per the Act the he might be liable to pay damages for the same (Dunne & Slaytor, 2017).

In a number of matters it has been observed that, when a service of an employee was ended by the employer who has been ceaselessly employed for last 3 months then the manager must grant the worker with either a non verbal notice of termination or damages (Find Law, 2017).

In Susanna Ma v Expeditors International Pty Ltd; Susanna Ma v Expeditors Pty Limited  [2014] NSWSC 859 it was concluded that the claimant filed a case for failure to give notice for termination and asked to get 10 months’ pay in lieu of notice. But the court found out that the notice was given and so the damages must not be paid by the employer.

Conclusion

As a result, it has been concluded at the end that if it would be presumed that Donald was a worker then the ABC have a duty to provide  Donald a notice of termination, at law. Also, at the same time as no notice was granted to the employee so even after he was asked to leave and was if required to be no longer a worker than also he would get his cost which he was in lieu of.

Consequently, it could be stated that if individuals presume Donald as a worker of ABC Corporation, then ABC would evidently be in violation of the Fair Work Act as ABC asked him to agreement with DEF. Such an act was vehemently obligated on Donald as he was specifically told that if he would not resign then he would not get any work.

So, at the end it would be concluded that Donald would not still be considered as a worker of the company as he gave his resignation from ABC Corporation.

 

References

Australian Government. (2017). Employee Or Contractor. Retrieved on 18th February’ 2017 from: https://www.abcc.gov.au/rights-and-responsibilities/engaging-contractors/employee-or-contractor

Australian Government. (2017). How To Determine If A Worker Is An Employee Or An Independent Contractor. Retrieved on 18th February’ 2017 from: https://www.abcc.gov.au/resources/fact-sheets/independent-contractors/how-determine-if-worker-employee-or-independent

CPA Australia. (2017). Employees And Contractors. Retrieved on 18th February’ 2017 from: https://www.cpaaustralia.com.au/~/media/corporate/allfiles/document/professional-resources/practice-management/employee-versus-contractor-complete-transcript.pdf

Dundas Lawyers. (2014). Changes to employment may trigger a constructive dismissal claim. Retrieved on 18th February’ 2017 from: https://www.dundaslawyers.com.au/changes-to-employment-may-trigger-a-constructive-dismissal-claim/

Dunne, M. & Slaytor, E. (2017). Deductions from Wages or Salary when are they permitted under the Fair Work Act?. Retrieved on 18th February’ 2017 from: https://www.hunthunt.com.au/news-and-publications/deductions

Find Law. (2017). What is reasonable notice when a contract of employment is terminated?. Retrieved on 18th February’ 2017 from: https://www.findlaw.com.au/articles/5088/what-is-reasonable-notice-when-a-contract-of-emplo.aspx

FMW. (2017). Employee Or Contractor?. Retrieved on 18th February’ 2017 from: https://www.fmw.com.au/files/employee_or_contractor.pdf

HopGood Ganim. (2015). HG Employment Law Alert: “Reasonable notice” for terminations?. Retrieved on 18th February’ 2017 from: https://www.hopgoodganim.com.au/page/Publications/HG_Employment_Law_Alert_%E2%80%9CReasonable_notice%E2%80%9D_for_terminations_-_27_January_2015/

Legal Vision. (2016). What is Constructive Dismissal or Forced Redundancy?. Retrieved on 18th February’ 2017 from: https://legalvision.com.au/constructive-dismissal-or-forced-redundancy/

Minken Employment Lawyers. (2017). Constructive Dismissal—When Resigning May Actually be Wrongful Dismissal. Retrieved on 18th February’ 2017 from: https://www.minkenemploymentlawyers.com/employment-law-issues/constructive-dismissal-when-resigning-may-actually-be-wrongful-dismissal/

Squire Patton Boogs. (2013). Voluntary resignation or constructive dismissal? Employers be wary. Retrieved on 18th February’ 2017 from: https://www.lexology.com/library/detail.aspx?g=26f7810f-3675-4ae0-9771-8d4a286d01b7

Thornton, E. (2014). Constructive dismissal: Resignation brought about by the conduct of the employer. Retrieved on 18th February’ 2017 from: https://www.mauriceblackburn.com.au/about/media-centre/newsletters/employment-industrial-law/issue-20-2014/constructive-dismissal-resignation-brought-about-by-the-conduct-of-the-employer/

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