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Discuss about the Negligent Hiring and Criminal Rehabilitation.

The scenario given to us involves as entity, Technicalities Limited and an office worker that it had hired, Maisy. The question arising from the activities of Maisy and its relationship with Technicalities and Innovative Storage is whether Maisy is an employee or any other type of worker (Adams 2004, 219-241).

An employment of contract is binding if some of the following elements are included:

The person is bound by a number of hours and is paid for them

Tax and NIC is deducted from their wages

They are entitled to be paid for sick leave or maternity leave

They cannot do any other work or send someone else to do their work (Alder & Gilbert 2006, 449-464)

There are many differences between and employee and any other types of workers, such as self-employed and a casual or irregular worker. All these different workers and have different rights and regulations to follow under their contract obligations and have to fulfill them no matter what their occupation is! (Brody 2010, 210-223) A contract-verbal or written-should be made and should consist of the following; an obligation to perform work personally, meaning that the employee cannot send someone else to do his or her work. Secondly, the obligations must be set with mutual consent so no party is forced to do any sort of work and thirdly the employer must have a sufficient right and power to control the employee. (Christensen & Low 2003, 416) If the employee is doing some work incorrectly or inefficiently, the employer should have the power or right to address the particular employee and correct his mistakes by guiding and helping him/her. When Maisy was appointed to IS, she worked for other clients as well, albeit casually.

An employee cannot work for other clients when he or she is bound under the contract of employment but Maisy was not bound and restricted from doing work apart from that required by IS. Moreover, she was also asked to register and Australian Business Number so that she could be paid a flat hourly rate without any complexities and problems and offending any laws regarding penalty rates. Furthermore, an employer deducts tax and National Insurance Contribution (NIC) from the employee’s wages, but in Maisy’s case, she herself paid her taxes and superannuation contribution. (Creed 2007, 183) Plus, Maisy was not granted a paid sick or carers leave which also highlights that she is not an employee. An employee is granted a statutory sick, paternal or maternal leave and Maisy was not granted any paid leave as such. All these factors show that Maisy is not an employee, but another type of worker most probably self-employed.

Application

If Maisy is an employee, determining her employer is an issue in itself; whether Technicalities Limited or Innovative Storage has actually hired her. Maisy is an office worker for Technicalities and was offered to a client, Innovative Storage who after being impressed with her work told her they would continue to need her and she started working full time for them. Taking a look at the elements of the contract of employment, an employee has many rights that need to be fulfilled and different aspects as to how they are treated. (Crespi 2004, 1)

An employee will be required to work regularly unless they are on leave, they are to work for a minimum number of hours and be paid for them, they are to receive a paid sick, paternal or maternal leave, they cannot send someone else to do their work, all the equipment, materials and tools for the work is to be provided by the employers. For a specific number of days, they are granted a paid holiday. Employers also have to deduct taxes and National Insurance Contribution from their employee’s wages and the employee should not pay taxes him or herself, if they do so they don’t fall in the category of an employee. Employers can also join their employee’s pension scheme. Employees will only work at the address specified by the employer. Either they will work at the employer’s premises or any other area prescribed but no other than that. (Gilbride 2003, 130-137) The employees will only work for the employer, and if they work someplace else or work some other job, it will be completely different from their work for their current employer. (Garibaldi et al. 2004, 33-68) Employees are not left to do work on their own, but they are kept an eye on by managers and supervisors who tell them how work should be done and till when it should be submitted and finished.

Relating all this information to the scenario, Maisy accepts all the instructions and directions from IS and not Technicalities Limited. Whenever Maisy is at work, she constantly wears the IS uniform and also receives training from them at a spare room in their premises hinting towards Innovative Storage being the employer. It was IS who told Maisy what her daily hours of work would be, what would she be working on, all her duties and with whom she’ll be working with. When she fell down the stairs, it was IS and not Technicalities Limited who reimbursed her of all her medical expenses. She took no instructions from Technicalities and the company only made her register for and Australian Business Number as a requirement so that she could get paid at and hourly rate without any penalties.

Conclusion

Overall, looking at how Maisy takes all instructions and equipment from IS, wears its uniform and gets training from Innovative Storage, it is indicative that Innovative Storage is the employer of Maisy.


A breach of contract occurs if either the employee or employer fails to follow any term or condition specified in the contract. (Gorman 2005, 702-728) A breach of contract can also take place if an employer changes the contract or some conditions of the contract without the employee’s agreement, and hence the employee becomes liable to sue the employer and claim compensation. Sometimes a breach of contract takes place with a very serious action taken such as the working conditions or premises have been changed which were not already included in the contract or the employer has cut the employees pay. (McMahon & Hurley 2008, 103-105) In conditions like these, it is impossible to work for the employee and he or she is forced to resign. Such an occurrence is known as constructive dismissal.

According to the scenario, Maisy applied for an office job at Innovative Storage but her application was not accepted and her current services were made obsolete, which was not told to her beforehand. Maisy is liable to sue her employers if there was a condition in her contract which stated that while working for Innovative Storage, she could not have applied for another job in the same company or any other company. The employers should have made these terms and conditions clear as one the element of and Employment Contract is that obligations should be set my mutual consent and the terms and conditions should not be hidden from the employee. Furthermore, some terms of a contract are not written down. A breach can be of a written term, a verbally agreed term or a term which is ‘implied’ in a contract. (Sivadas 2003, 7-21)

Implied terms are those which are not written in a contract as they are fairly obvious to both parties. The implied term of ‘Mutual trust and confidence’ is a part of almost every contract and the IS seems to have breached this term of the contract by breaking the trust and confidence of an employee and not making her aware that applying for other jobs in the same company will have dire consequences. (Xu & Li 2003, 013)

Conclusion

Maisy should have a look at her employment contract and if such terms and conditions are displayed there and she had failed to read it, then it won’t count as a breach of contract. If no such conditions were written in the contract, Maisy has the right and is liable to sue her employers for the breach of contract as they have wrongfully suspended her services without actually letting her know or warning her what consequences her actions will bring her. In giving her two weeks’ pay in lieu of notice, the employers have acted according to the contractual obligations, but taking away her job in the first place was a breach of contract. Maisy could have also taken her employers to court for failing to provide her with safe working conditions as due an oil spillage she fell down the stairs and hurt herself pretty badly. She chose not to as she received the full reimbursement but in terms of losing her job she should sue Innovation Storage.

References

Adams, Scott J. "Age discrimination legislation and the employment of older workers." Labour Economics 11, no. 2 (2004): 219-241.

Alder, G. Stoney, and Joseph Gilbert. "Achieving ethics and fairness in hiring: Going beyond the law." Journal of Business Ethics 68, no. 4 (2006): 449-464.

Brody, Richard G. "Beyond the basic background check: Hiring the “right” employees." Management Research Review 33, no. 3 (2010): 210-223.

Christensen, Sharon A., and Rouhshi Low. "Moving the Statute of Frauds to the Digital Age." Australian Law Journal 77 (2003): 416.

Creed, Timothy L. "Negligent Hiring and Criminal Rehabilitation: Employing Ex-Convicts, Yet Avoiding Liability.” Thomas L. Rev. 20 (2007): 183.

Crespi, Gregory Scott. "Is a Signed Offer Sufficient to Satisfy the Statute of Frauds." NDL Rev. 80 (2004): 1.

Garibaldi, Pietro, Lia Pacelli, and Andrea Borgarello. "Employment protection legislation and the size of firms." Giornale degli economisti e annali di economia (2004): 33-68.

Gilbride, Dennis, Robert Stensrud, David Vandergoot, and Kristie Golden. "Identification of the characteristics of work environments and employers open to hiring and accommodating people with disabilities." Rehabilitation Counseling Bulletin 46, no. 3 (2003): 130-137.

Gorman, Elizabeth H. "Gender stereotypes, same-gender preferences, and organizational variation in the hiring of women: Evidence from law firms."American Sociological Review 70, no. 4 (2005): 702-728.

McMahon, Brian T., and Jessica E. Hurley. "Discrimination in hiring under the Americans with Disabilities Act: An overview of the National EEOC ADA Research Project." Journal of occupational rehabilitation 18, no. 2 (2008): 103-105.

Sivadas, Eugene, Susan Bardi Kleiser, James Kellaris, and Robert Dahlstrom. "Moral philosophy, ethical evaluations, and sales manager hiring intentions." Journal of Personal Selling & Sales Management 23, no. 1 (2003): 7-21.

Xu, Lanying, and Xiangmin Li. "The Ways of Preventing Risks Through Contract Management." Commercial Research 15 (2003): 013.

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