Sammy provides international tourists with Coach Tours throughout Australia. He owns “Sky Tours” a business located in Mildura. In his business he employs 20 people. He has both employees and independent contractors working as his drivers. One day when Mike was driving on one of the “Sky Tours” jobs, he travelled through a red light as he was speeding along. He collided with a taxicab in front of him. As a result, Jack, the driver and owner of the taxicab suffered injuries to his legs and huge damages to his car. His losses were considerable. As Jack was being driven away from the scene of the accident- Jack observed a Sign, on the rear of the Coach bearing the words “Sky Tours”.
Though Mike is the Coach Driver who collided with him – Jack has found out that, has Sammy is the owner of “Sky Tours”. Therefore, Jack and is now seeking to recover damages from Sammy for his losses. The damages he is seeking from Sammy are as followsa. $5,000 for ‘Medical Costs’; and b. $4,000 for ‘Vehicle Repair Expenses’; and c. $4,000 for ‘Loss of Income’; and d. $2,000 for ‘Loss of Deposit on a Cruise Ship
Booking’ that he lost when he was forced to cancel the booking.
Jack has sent a letter of demand for compensation but Sammy is refusing any liability whatsoever. He claims that Mike is operating as Independent Contractor, not as an Employee, and is therefore directly liable for Jack’s damages.
The background circumstances of Sammy and Manish’s Work Relationship are as follows
1. Sammy is paying Superannuation Contributions to Mike’s Superannuation Fund.
2. Mike is permitted to delegate the ‘driving work’ to another qualified driver – if he’s unable to drive due to illness or being busy elsewhere.
3. Mike pays for the ‘Motor Vehicle Insurance’ on his Bus.
4. Mike pays for his own maintenance and repairs on the Coach.
5. Sammy pays for the regular internal cleaning, and external washing, of the Coach.
6. Sammy instructs Mike as to the details of the Tours (pick-up and destination times and places).
7. Sammy has placed his brand name “Sky Tours” – on the two sides of the Coach – for advertising and marketing his business.
8. Mike accepts ‘Coach driving work, from time to time, with other Bus Tour companies.
9. Sammy and Mike have signed a ‘Written Contract’ stating that Mike is engaged as an ’Independent Contractor’.
10. Sammy pays Mike a ‘Weekly Salary’. He deducts Pay as you go Tax” (PAYG Tax) and pays the balance of the money into Mike’s Bank account.
Assignment Questions: Topic: ‘Employment Law’
Students please note –
REFERENCING REQUIREMENTS –
• You are required to use Legal Principles, Statutes and Case Precedents, to justify your answers.
• As this is a ‘Reading and Research Assignment’, you are required to use at least 6 Sources – and a variety of Sources- (including Websites, Textbooks Online Text-Books, Journal Articles, and Case Precedents. Please note that up to 4 marks will be deducted if these requirements are not met.
• The answers to Questions 1 to 4 should be around 500 words each.
QUESTIONS : Employment Law
1. It has been said that under Employment Law- assessing the difference between an employee and an independent contractor- is vital – as it relates to the issue of ‘liability’ for negligent Conduct”… Explain and discuss this statement.(9 Marks)
2. The ‘Multi Factor Test’ was utilised by the High Court to determine the nature of a work relationship in the Case ‘Hollis v Vabu Pty Ltd (2001). Explain and discuss this case – and how the Multi-Factor test was applied in that case. (9 Marks)
3. Identify and discuss the ‘Multi-Factors’ (in the case study) with the use of a ‘MultiFactor Balance Sheet’ table, to determine whether Mike is more likely to be regarded as an ‘Employee’ or an ‘Independent Contractor’? (9 Marks)
4. a. Who is the proper Defendant; Should Jack sue Mike or Sammy, and give your reasons for your answer? Explain the concept of ‘Vicarious Liability’ in relation to Sammy, if he is regarded to be an Employer. (5 marks)
b. Explain the Two Criteria (causation and foreseeability) under which Damages are usually able to be claimed in Negligence actions. List the four specific damages being claimed by Jack and explain – for each one of those damages – whether Jack would be successful in claiming them – taking into account the abovesaid ‘Two Criteria’. (4 marks) (Total 9 Marks
5. Please answer ‘Yes’ or ‘No’ – to each of the following questions. You are NOT required to give any explanation. This is for you to check that you have fulfilled Assignment Referencing Requirements.
In this Assignment –
i. Have you used ‘In-Text’ Referencing? – (Yes or No?)- (2 Marks)
ii. Have you included a ‘Reference List’? – (Yes or No?)- (2 Marks) (Total 4 Marks)
A. If there is NO REFERENCING whatsoever in the Assignment – then the Assignment will NOT be marked – and the Assignment will be cited for
Suspected Plagiarism. B. The Degree of “Similarity” should not be more than 25-30%.