Project #11236 - Australian Human resource Management Law

Case Study

Suggested format

  1.  Identify the legal issue/s*
  2. Describe the relevant law- Australian Law
  3. Apply the law to the facts provided
  4. Make a conclusion on the facts.

*If there is more than one legal issue, apply all of the steps of the format for each issue.

 

Jenny, aged 21, is areceptionist at a dental centre operated by Smile Brite Pty Ltd and trading as Smile Brite Dental Centre. When she was only 18 she saw the job online.  The advertisement had stated that no experience was necessary and training was provided, but that only Australian Business Number (ABN) registered applicants need apply.  Jenny already had an ABN from a leaflet dropping job she had done over the summer immediately after she finished high school.   When she started the Smile Brite job, Jenny signed a form that described her as a personal service supplier.  It included details of her ABN and statements which in short said she was not an employee and that Smile Brite had no obligation to provide her with work. When Jenny asked if there was a minimum number of hours she could expect, the Smile Brite manager, Mrs. Winterdown, had verbally confirmed she would have regular hours of work and the opportunity to work overtime at a higher pay rate.  She added there were rules that applied to working at Smile Brite, but that she thought Jenny would have no issue with them if she was punctual, obedient and responsible.   Jenny has since worked mainly for

Smile Brite, but occasionally she picks up weekend evening shifts at her sister’s restaurant. 

 

Smile Brite does have a number of written policies that are pinned to the staff room noticeboard.  They have also been emailed to all staff annually. One is on the disciplinary procedure, and describes  a policy of progressive discipline starting with a written warning for misconduct and escalating to severe disciplinary action and including dismissal for gross misconduct.  Jenny once got an email from Mrs. Winterdown warning about her late arrival at work on one specific occasion when she was an hour late.  Jenny had rung to advise Smile Brite that she had to arrange alternative care for her toddler because the child care centre had been damaged by a freak storm overnight and was not open.  Another policy is on the use of electronic equipment that prohibits private use during working hours.  Still another is a proscription on sexual harassment and other undesirable conduct.  It lists Mrs. Winterdown as the contact person for all staff queries and complaints. 

 

Jenny works from 8 am to 2pm Monday to Friday.  She is allowed a tea break of 15 minutes at around 11am. Jenny has worked for Smile Brite for nearly 3 years.  She is paid fortnightly by direct bank deposit based on an hourly rate with no tax deducted. Jenny provides an invoice monthly totalling her hours at the base rate. To her knowledge, she does not get superannuation contributions paid on her behalf.  Nor does she get any paid personal leave, but she can take leave as arranged with Mrs. Winterdown if she or her son gets ill. Jenny gets the Christmas break off work because the Dental Centre is not open. She wears shirts supplied by Smile Brite which are embroidered with a design that matches the signage to the Dental Centre.  Jenny recently attended a reception training seminar at Mrs. Winterdown’s request, and which Smile Brite paid for.  It was about a new patient records system the Dental Centre is introducing.  Jenny has been eager to raise her skill levels in the hopes of one day getting full time work. She always excels in the quarterly performance appraisals undertaken with Mrs. Winterdown.  

 

Jenny has been experiencing continuing problems with one of the older dentists, Mr Winterdown.  While in the staff room he habitually approaches her and asks for sexual favours, at the same time trying to hug her and kiss her neck.  She always refuses, and pretends she does not understand him, but she is starting to fear she will lose her job if she does not acquiesce because of his increasingly aggressive advances. As far as  gossip goes, the reason the last receptionist left was because this dentist had forced himself on her and when a complaint was made, she was given no more shifts.   

 

On what basis might Jenny argue she is an employee and has contractual rights to be protected from the dentist’s advances?  In particular, address relevant common law dealing with:

·         Employment status

·         Sham contracting

·         Employer policies

·         Employer duty of care

 

Subject Law
Due By (Pacific Time) 08/30/2013 12:00 am
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