“Under Employment Law it is important to establish whether a person is an employee or independent contractor, to determine ‘liability’ for their conduct”. Explain, analyze and discuss this statement.
Yes, it significant to create whether an individual is an employee or an independent contractor to analyze the Liability of their conduct because the fact that an employee and an independent contractor might carry out the same tasks, their relationship with the employer is distinct. An employee is an individual who has been hired by an employer to perform continuous labor in compensation for a defined salary, which is a notable change between them and contract employees. An employee who offers assistance to a different company in exchange for a defined fee is a self – employed. As per the case study, Ken owns and drives their coach and paid for their upholding and reparations but afterward he signed a contract and stated that Ken is an Independent Contractor. An Independent contractor is an individual or organization that has a deal to work for or provide services to some other organization as a non-employee is known as an independent consultant. Contract employees consequently have to cover their own Social Security and Medicare taxes (Golding, (2019)).
So, Ben is an owner of BABA Tours but Ken provides a casual part-time and spent three hours and he pays a fixed salary. So, Ben is an employee in another situation. Therefore, both were employees as well as an independent contractors. Whatever a group does, whether this engages anything or not but if the recruitment affiliation can manage and direct an independent Contractor entity the project being completed to a certain level by the hired person, at that point that person is no longer a self-employed entity and is instead treated as a member of the hiring company. Typically, an Independent Contractor person or entity enters into a given work or commitment independently, using their techniques and systems without relying on the recruitment party’s control yet with relation to the absurd goal or outcome. Generally, in situations where this opportunity level, the recruiting component’s commitment load, and who only exercised limited control over how the contractual work was carried out results in imbalance. Distinguishing between a “representative” and a “self-employed entity as such” can become a crucial term and commitment problem with the recruiting material.
Therefore, to determine the liability, the employee as well as the independent contract is held vicariously accountable for an independent contractor’s negligence, strict responsibility, and when the employee provides the contractor permission to conduct the work. Based on the case study, Ken is a driver who tangled with another one and he thought that Ben is liable for all the loss but it is mentioned in a written agreement that Ken is an independent contractor and he is liable for his negligence and he paid for his insurance on his Bus. On the other hand, an independent contractor could be someone who is required to carry out tasks following the policies of the individuals. Hence, both the person acts his duty as an employee and independent contractor (YERS, et, al,(2012)).
Explain and discuss how the ‘Multi-Factor Test’ was utilized by the High Court to determine the nature of a working relationship in the Case ‘Hollis v Vabu Pty Ltd (2001).
The High Court utilized or use the Multi-Factor Test to analyses the nature of work relationships in the case of Hollis vs Vabu Pty Ltd, 2001. This case was based on the employee and independent Contractor while deciding whether a connection is one of work or independent contractual, the “entirety of the relationship” between the parties must be taken into account. The relationship is determined using a multi-factor test by the high Court. A formal agreement outlining the essence of the partnership has always been one pertinent factor, but it has never been sufficient on its own.
Therefore, the Courier hit a pedestrian and wanted to make an argument that the employer was indirectly liable for the tortious behavior of the contractor claiming carelessness. The High Court determined that there was a contractual relationship since Vabu was found to be the company of its vendors. They were having to wear Crisis Courier’s uniforms as the court acknowledges that the employees were not necessarily in the industry and they were unable to create “goodwill “ including all the collaborations they are doing the good reputation is happening to recession couriers rather instead of the employee. Due to this, all the decisions were affected and tried to dissuade people industries from acting carelessly in reverence of acting for the good of societal structure (Sinopoli & Guo,(2021)).
Therefore, Courier hit a pedestrian and want to make an argument that the employer was vicariously financially responsible for this same wrongful act actions of the employee trying to claim carelessness. The variation in judgments made in the publicized verdicts simply serves to demonstrate how challenging the boundary between an employee and an Unemployed person is expected to bring in practice. Unlike the conventional being only one criterion, the control test deciding one’s job status is crucial. Additionally consider “the entirety” between the relationships’s parties and pay close attention to the conditions whether they are oral or written as well as to the systems, inscription the employer’s operations.
In this, there is some Multi-factor test utilized by the Court i.e. Courts examine every aspect of the case as part of the complex test and decide whether to classify a worker as a delegate or self-employed entity. Even though there are numerous components. Some clear factors that should be carefully considered in the test include:
– Personal relationship: An employee owes the company a duty of faithfulness and loyalty to the employer.
– Mutuality of commitment: In under- employment agreements, both parties must be future operating achievements are promised.
– Control level: It is precise in its command over where and exactly how an employee does and also takes action which is a clear sign that someone is employment connection.
– Right to a representative: The right to transfer or subcontractor is spelled out in a labor contract and offers individualized services. If someone persuades others to do work. It is clear evidence that these individuals are not workers.
– Corporate representation as a component: The Company’s business including badges with emblems characteristically implies employment connection.
List and analyze the multi-Factors’ (in the case study) with the use of a ‘Multi-Factor Balance Sheet’ table, to determine whether Ken is more likely to be an ‘Employee’ or an ‘Independent Contractor?
To get the list and analyze the “Multi-Factor” (in the given above study) they first have to know what is “Multi-Factor Balance Sheet “is. The “Multi-Factor Balance Sheet” table is a table that shows the representation of or the amalgamation of distant components or components which correspond and match up with the comeback of assets. The “Multi-Factor” model helps to disclose the collision on assets concerning cost. It also assists in finding out the reasons for reliant shifting and also assist the elements which are given rise to the same.
Now let’s discuss the factor test which helps them to find out the connection in case of labor as per the “Australian Courts “is an employee or an individual and unconventional architecture. In spite of the fact that there are different components apart from all of them some of them they are discussed in the table which is given below:
|Private Connection and Relationship||Talking about this component highlights the connection or the relationship between the worker and his manager in which the worker has to possess or be responsible for the commitment of dedication and allegiance towards his manager or boss. As in this case, they need to identify the relationship and connection between Ken and Ben.|
|Interdependency or interdependence of duty||As Ken performs his duty on condition or demand built by the conversation from Ben, and on the supposition and the agreement of the worker it is in the need of interchange of the task for money and it also involves the word oh honor or assurance for upcoming or future tasks.|
|Level or the stage of jurisdiction||This factor involves the jurisdiction on two distant questions one is what are the laborers doing and how they are doing a particular task this shows the tough or durable sign of the connection between the manager and worker. As in this scenario, Ken has tasks but has some conditions for doing them like Ben pays superannuation and weekly salaries.|
|Equitable for deputation and partnering||This is a very important factor that acknowledges them that the application is harmony or concurrence is a contract for the scholar’s private flavor. For instance, if an employee engrosses a person by performing or completing his/her work this is very good and a strong signal that this person is not a worker. And in the above case, Ken is not allowed to make other people or persons drive for himself as per the contract.|
|Characterization and description is a piece of manager or boss occupation.||Last but not least this factor allows us to get a better understanding of what are the possible components that can highlight the connection and relationship of utilization and application they are the uniform or the clothes they wear at the time of the task and the trademarks over the badges. As in this case, Ken is an independent contractor and he works for other companies as well no logo no uniform(Owens & R.,2021)|
- Who is the proper Defendant; Should Imran sue Ken or Ben, and give reasons for your answer? Explain the concept of ‘Vicarious Liability’ in relation to Ben, if he is regarded to be an Employer.
- List the four specific damages being claimed by Imran and explain – for each one of those damages – whether Imran would be successful in claiming them
To understand or finding the correct defendant they have to get an idea of the overall scenario or the case study. In the above scenario, there are three-character Ben, Ken, and Imran. Ben is the owner of (BABA Tours) which provides tours for tourists all over the Australian country. Ken is a bus driver who usually involves in tasks like picking up passengers and tourists from Morwell railway station and working for Ben owner of (BABA Tours). One day when Ken is getting late, he accelerates his car and gets crashed into Hire Limousine (Bell, (2013)).
In all the above situations a person name Imran who is the owner of a Limousine got hurt. Imran has been seriously hurt his ribs and arms are fractured and needs serious medication. Now Imran fired a case over Ben who is the owner (BABA Tours). So the answer to the question that who the correct defendant is Ken because of the below factor that is given in given in the agreement or the accordance is:
Firstly, Ken is an independent contractor and not an employee which means that he is working for Ben without being an employee. Therefore, Ben or (BABA tours) is not responsible or liable to pay for the damage of Imran.
Secondly, there are some circumstances between the relationship or connection with Ken. According to the agreement or contract Ken owns or drives his car and also pays for the maintenance and repair of his vehicles.
Thirdly the payment made by Ben to Ken is only for internal and external washing of the vehicles.
Fourthly Ben is only responsible for the details and instructions of the tours like the time or place of picking up of clients.
Fifthly Ken is also involved in some casual part-time coach driving for some distant or dissimilar companies other than (BABA Tours) at every last day of the week from 2 to 5pm.
Ken was not allowed to envoy his work of navigation of bus to another driver if he is not fit due to illness or maybe for other distant-dissimilar activities.
Last but not least Ken pays insurance for his vehicles.
Vicarious liability is a particular condition where one gathering is in charge of some illegal steps of the other party. From the point of view of this particular scenario where Imran wants to sue Ben in court who is not responsible for their actions Ken because according to the contract or agreement which shows that Ken is an individual contractor(Bell & J., 2013).
The four specific damages being claimed by Imran and whether Imran will be successful in clamming them are as follows:
$7000 for vehicle repair expenses.
$6000 for Medical costs.
$4000 for loss of income.
$500 for the loss of deposit on a Motel Booking during an accident.
Imran will not be successful in claiming or suing Ben because Ken is an individual contractor so Imran can’t sue Ben. In the case of Ken, Imran can sue him for the damages (Cohen & Touboul, (2022)).
- Have you used ‘In-Text’ Referencing?
- Have you included a ‘Reference List’?
YERS, J. M., BRAMBLE, P. R. A., LINC, J. T. R., ARK, J. O. A. B., D ANIELLE, B. F., AM, E., … & POOR, Y. (2012). JOURNAL OF LABOR AND EMPLOYMENT LAW.
Sinopoli, E., Marmo, M., & Guo, S. (2021). Submission to the Senate Select Committee on Job Security.
Golding, G. (2019). The distinctiveness of the employment contract. Australian Journal of Labour Law, 32(2), 170-191.
Bell, J. (2013). The basis of vicarious liability. The Cambridge Law Journal, 72(1), 17-20.
Owens, R. (2021). Work experience, the contract of employment and the scope of labor law: The United Kingdom and Australia compared. In Internships, Employability and the Search for Decent Work Experience (pp. 189-206). Edward Elgar Publishing
Bell, J. (2013). The basis of vicarious liability. The Cambridge Law Journal, 72(1), 17-20.
Cohen, M. C., Dahan, S., Khern-am-nuai, W., Shimao, H., & Touboul, J. (2022). The Use of AI in Legal Systems: Determining Independent Contractor vs. Employee Status. Employee Status (January 20, 2022).