Posted: September 17th, 2015
Wendy loved her new job. She was hired to sample soil for a mining company. Her contract says she can choose her own hours, although her base income is calculated on performance of 37.5 hours a week and her work hours are to average to that number of hours. The contract describes her as an ‘independent contractor’ geologist, and it says she is not guaranteed any work. It discusses that she is responsible for her own taxation, insurance and any superannuation she chooses to accumulate. Other terms include a termination notice requirement of one month by either party in writing. A final section of her contract prevents her from working for any other person or mining entity for twelve months following termination of her contract. It details that post-termination of her contract she is not to solicit any staff working for the company to take employment with another person or entity, or to solicit any person who contracts with the company to contract with another person or entity.
Wendy has an Australian Business Number and invoices the company the same amount each month; the company work rules book examples how the invoice should appear. Wendy was given a copy of the book on her first day of work with the company. The book includes a number of company mission statements as well as a number of staff restrictions. For example, it prohibits Wendy from working for any other mining entity while she is working for the company or delegating her work to any other person or entity, unless she has the company’s written permission. In relation to workplace behaviour the book states that discriminatory behaviour by staff will not be tolerated and will attract discipline following a timely investigation. Staff are promised a report detailing the outcome of any complaint they might make, and staff who are subject of the complaint receive it also.
Recently, Wendy has had a disagreement with her supervisor about her being publicly associated with the gay and lesbian movement. She understands her supervisor has made a formal complaint about her in this regard.
Advise the company
• Whether a contract of employment has been formed with Wendy
• Whether they are contractually bound to follow their rules book, and in particular, in relation to the complaint
• Whether the terms in Wendy’s contract are enforceable by them in relation to her activities post-employment.
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