Donald commenced employment with ABC in November 2008. He was employed as a cleaner on a full time basis up until November 2016. 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. Donald 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 Donald and other employees that nothing would change.
Donald 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. Donald 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 Donald believed his performance was not a factor since it was not mentioned.
- Was Donald still an ABC employee? Refer to cases that use the current common law test
- If we assume Donald is an employee, have ABC breached any federal legislation in relation to requiring him to contract to DEF?
- If we assume Donald is an employee, does ABC have an obligation to give Donald any notice on termination, under common law or legislation?
Simone 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 PR PRO rules. Until recently, Simone wore a shirt that had a PR PRO embroidered logo and received an agreed percentage of all sales she made. She also received a small base payment on a monthly basis. Simone paid tax on that income directly to the taxation department. PR PRO recommends their workers register a business name for these purposes. Simone had no set hours and used her own car to visit clients. She maintained her car and received no allowance for its use. PR PRO has not trained her or the other salespersons, rather they attend a specialised training agency and PR PRO pays for it. Simone was required to have her mobile phone with her at all times for work reasons, and she answered calls from PR PRO 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. Simone never discussed her entitlement to personal leave or holiday leave in the four years she worked for PR PRO and they have never offered her any paid holidays.
On December 1 2016 Simone 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.
- Is Simone an employee or another type of worker? Use the current common law test.
- If we assume Simone is an employee, is PR PRO in breach of a common law duty in relation to not giving Simone any days off work or holidays?
- If we assume Simone is an employee, does she have an entitlement to notice, at common law or pursuant to legislation, if PR PRO decides to replace her?
