The issue in this situation is whether Westwood or June is in breach of contract and whether June can take legal action against Malcolm conduct against her. Rule of Law The law on this issue is found in the common and statute law. June is most likely an employee and is legally binded by contract of employment. June has satisfied most of the contractual stage elements to prove that contract of employment exist and these are the few elements that has made the contract enforceable, thus the existence of the employment contract. 1.
An ‘intention’ between Westwood and June for the purpose of jobscope as a Librarian Assistant to create legal relationship for the terms and conditions to be enforceable. 2. Offer was made via the contract of service prepared by Westwood which act as a promise between both parties and was accepted by June. 3. Assumed the contract was supported by valuable consideration. 4. June was legally capable to make a contract with Westwood at the point of agreement. 5. “The contract is legal for the purpose of worl” (Workplace info. 2007) 6. Westwood and June have already consent to the terms and conditions of the contract that was made.
There is also another way to determine whether a person is an employee or otherwise, there is one method which is called the “Multi-Factor test” where we can see in the case of Performing Right Society v Mitchell and Booker (Palais de Danse) Ltd (1924) case. June is working for Westwood and is working at standard set of hours which is 9am to 5pm every Monday to Friday. She has the benefit to use the campus camera to run errands and her superannuation fund is 1 contributed by the employer. Under the multi-factor test, contribution of superannuation is deducted from the employee earnings while independent contractor, has to do it directly to the Australian Taxation Officer (ATO).
This is also seen in Hollis v Vabu (2001) case where control element in the relationship is exist, where June follows instructions from Westwood by diligently completing her task that was assigned by the Company as well as sign on at the set working time. In Preston Corporation Sdn Bhd v Edward Leong (1982), an offer was defined as a willingness to be bound by the terms of an agreement. This shows that June has willingly accepted the offer and the terms and conditions from Westwood to be the Librarian Assistant. Although, the social-networking policy is implemented only one month after June has joined but in Narich case and AMP Society v.
Chaplin case stated that it is legal for employer to alter the policy so long as it is reasonable to obey. Therefore, June should diligently abide the rules and policy of Westwood for not bad mouthing Westwood on social networking as that might bring the image of Westwood to shame. June may also take legislation action against Malcolm under Equal Opportunity Legislation. Under the Australian Capital Territory Discrimination Act 1991 (ACT), it is against the law for throwing bad remarks to the employee either directly or indirectly. This law is also seen in McCarthy v. Metropolitan (Perth) Passenger
Transport Trust (Transperth) (1993) case. Application of Law 2 The significant fact for the problem is whether June has willingly posted several bad remarks towards Westwood in her social media account that cause the breach of contract between her and Westwood. It is indeed clearly stated in the implemented policy that employees of Westwood should have the responsibility in ensuring any references to Westwood is factual and not other confidential information while non-compliance will be considered misconduct. As what was discussed under the rule of law, June has indeed breach the contract
with Westwood by not complying with the social networking policy. By committing this, Westwood has the right to terminate her contract due to breaching or take other disciplinary action against her as she has caused the reputation of Westwood to turn bad. She indeed did this intentionally to vent her frustration towards Malcolm over the social media and gradually develop the hate towards Westwood in over several comments. This may take time to repair the image for the school. Termination by breach of contract refers to terminating a contract employment in some circumstances if “other party breaches the contract of employment.
“Whether a particular breach justifies termination will depend on the nature of the breach and the particular circumstances of the case” (Government of Western Australia. 2010). Normally, termination for disciplinary misconduct is immediate without given any notice. Therefore, salary might not be released to them for this behavior, this also depending on the level of cases. 3 Some parties may compensated breach of contract by damages. In the case of Associated Newspaper Ltd v Bancks (1951) 83 CLR 322, “the newspaper was required to publish the cartoon on front page but instead it was published on the third page” (FEG. 2010).
This shows that Associated Newspaper did not comply to the terms of the contract with Bancks thus there is a breach of contract. Similarly to June v Westwood case where June did not follow the policy of the school and therefore, June is required to pay damages in most likely in a form of money to the company. As for whether June is able to take legislative action against Malcolm, the answer is most likely she can. As discussed earlier under the rule of law, June may use equal opportunity legislation both directly ad indirectly against Malcolm due to his discrimination towards June in the workplace.
It is actually against the law to be discriminated an employee about their profession, occupation and calling. Conclusion In conclusion, as what was mentioned under the application of law, June has intentionally made several remarks regarding Westwood library system and at the same time venting her frustration towards Malcolm over the social media. As the policy has clearly stated that non-compliance shall be “punished”, therefore, Westwood should take serious action towards June, in this case, termination without notice. 4.
As for the legislative action, June may lodge a complain against Malcolm, she by writing to the Discrimination Commissioner and it will then be investigated and conciliation. If unsuccessful, she may refer it to the Discrimination Tribunal for public hearing to be legally determination enforceable. References 5 An Australian Government Initiative. ND. How do I know if I am an independent Contractor http://www. business. gov. au/BusinessTopics/Independentcontractors/Pages/Ho wdoIknowifIamanindependentcontractor. aspx Australian Human Rights Commission. 2007. Australias Anti Discrimination laws http://www. humanrights.
gov. au/guide-australias-anti-discrimination-laws Australian Human Rights Commision. 2010. Legislation http://www. humanrights. gov. au/our-work/legal/legislation FEG. 2010. The Termination of Contract of Breach http://www. feg. com. au/documents/TerminationpaperTRG10. 10. pdf Government of Western Australia. 2010. Termination of Employment. http://www. commerce. wa. gov. au/associationsguide/Content/13_Employment/ 13. 4_Termination_of_employment. htm Workplace Info. 2007. Contract of employment conditions. http://www. workplaceinfo. com. au/resources/employment-topics-a-z/contract- of-employment-conditions 6.