SuperEvents Pty Ltd Case Study
As the owner of a new HR consultancy, you lead a small team of HR professionals keen on delivering the best advice and customer experience to your valued clients. A new client, Chloe, the Managing Director of SuperEvents is having some problems with a negligent security officer. Can you help them?
SuperEvents, a boutique events management firm with high-end corporate and community clients, advertised for a night shift security officer. The advertisement read:
Night Shift Security Officer
A suitably experienced person is required to work as a night shift security officer for a highly regarded events management firm. Duties will include regular patrolling of internal and external premises as well as monitoring security surveillance equipment. Employment will be on a casual basis with at least 18 hours work offered each week. For details please phone Chloe Kai on 075 555555. Application forms may be obtained from the SuperEvents website: www. SuperEvents.com.
Alejandro Peña is new to Australia so speaks only some English. He didn’t let that stop him. He responded to the advertisement and was subsequently interviewed. The discussion of the employment revealed that SuperEvents did not want an exclusive contract with him and they had no objection to him doing other work. They were able to offer him at least 18 hours of work each week, with the exact number of hours varying week by week. These hours would be based on Alejandro’s availability each week, so he would be required to let the office know, in advance, of his weekly schedule. He would be responsible for his own income tax provisions.
Either party could terminate the arrangement with 24 hours’ notice. No sick leave or annual leave was included, but Alejandro would be provided with a SuperEvents uniform (parka and a jumper with SuperEvents logo) free of charge. He seemed very happy to have the new clothes for free as this wasn’t common in Mexico. Although there was a security supervisor on the day shift Alejandro would be unsupervised on the night shift – there would be few if any other employees on site when he was working. He would be required to record his attendance on site and log any incidents that occurred for follow-up by the day shift. If Alejandro was unable to attend a shift he would need to advise SuperEvents so they could arrange a replacement from the day staff.
Alejandro was offered work with SuperEvents as a night shift security officer and accepted. As a consequence of the interview discussion, Alejandro established a company (Safe and Secure Pty Ltd). He wasn’t sure why he needed to establish a company since he had a job, but since he was new to Australia and really wanted the work, he didn’t ask any questions. Who knows, with this job he might get to meet really famous people. His weekly payments for his security work at SuperEvents were paid into a newly established company account so that he could keep his finances in order and to manage his own income tax and superannuation arrangements.
Alejandro joined SuperEvents just after a very successful major event and in preparation for the next. He found the buzz around planning the next event, a major convention on climate change, exciting and was soon on friendly terms with other workers he met who were working longer hours as a result of their increased work commitments. Over the next 6 months the excitement levels grew even more as the ‘big day’ came closer. By then, Alejandro had been working for SuperEvents for 12 months. Three nights before the convention, vandals broke into SuperEvents premises, where the signage and equipment to be used to promote the convention, its partners, and its suppliers was stored. Alejandro was doing an external patrol in a different part of the complex when the break-in occurred. The vandals managed to spray paint much of the promotional material with derogatory comments and slogans and get away before he could get back to the office to raise the alarm. As soon as Chloe was aware of the situation she sent a text message to Alejandro, dismissing him for negligence on the spot.
Alejandro believes he has been unfairly dismissed and wants to take action. The company maintains that he is an independent contractor and is therefore not covered by unfair dismissal laws. They also argue that even if he was an employee they have been fair given the damage he has caused through his negligence. As Chloe’s HR consultant what is your advice?Your task
Determine whether Alejandro is an employee or an independent contractor.
1. Discuss the test used to determine if a worker is an employee or an independent contractor, as outlined in the lecture, by exploring its use, elements and characteristics, and any issues related to the test(s) that might be problematic for application to the context provided in the case study material.
2. Apply the test to explore/analyse the issues in the case study. You are to provide an initial determination for each indicator as to whether it suggests (based on applying the balance of probability to evidence in the case study) that the worker is an employee or an independent contractor.
3. Provide an argument/justification (as a court would do) to reach a final determination of the worker’s employment status. This final argument/justification should include precedent cases and evidence both for and against your position. Ensure that when using precedent cases you explain how/why the case applies (or distinguishes itself) from the current context – don’t leave it up to the reader to try to interpret what you mean.
4. Provide recommendations to SuperEvents so that they might avoid such a misunderstanding in future (whether he is a contractor or not). Pay particular attention to the conduct of the interview and the clarity of expectations of both parties.