Analysis of Athena's Employment Status and Breach of Fair Work Act

Word Count: 1613

Workplace Law 2
Part (a)
Issue
The main issue of this case relates to Athena being a party to the contract of
employment.
Rule
In order for a person to be a valid party of the contract of employment, they have
to fulfil the basics of contract law. One of the requirements under the contract law is for
the parties to have the capacity of entering into the contract. This is usually in terms of
free consent, soundness of mind and legal age. Apart from this, there is a need for the
terms of contract to have legality. This means that the terms of contract cannot be
against any law. There is also a need for an offer to be made, which is accepted, and
this needs to have consideration value. The parties need to hold the intent of getting in
a contract, along with having clarity regarding contractual terms (Latimer, 2012).
Application
In this case, Athena was a Chinese migrant who came to work for Chinatown
Restaurant (CR). There was an oral employment contract present between Athena and
CR. Both parties had intent to carry on the terms of oral contract where Athena was
clearly given certain responsibilities. There is nothing to show that Athena did not have
the contractual capacity to enter in the contract. There was nothing illegal in Athena
working for CR. The other elements of the contract are also assumed to be present.

Workplace Law 3
Conclusion
This shows that Athena was a party to the valid contract of employment.
Part (b)
Issue
The main issue of this case relates to Athena being an employee of CR even
after giving her resignation.
Rule
When a person carries on their work, they can do it in two capacities, i.e., as an
employee or as an independent contractor. Based on the classification, the individual
gets different rights and duties. The two terms have a number of differences and this
includes the delegation of work by independent contractor to others, but the employees
cannot delegate their work to others (CCH, 2010). Due to the applicability of vicarious
liability, for the work done by the employee, the employer can be made liable. However,
this cannot be done for the employees. Again, the working hours of the employees can
be regulated by the employers but this cannot be undertaken for the independent
contractors. Owing to such variances, it becomes important that clarity is attained on the
person being wither the independent contractor or the employees (Giliker, 2010).
Certain tests have been provided under the common law which helps in
differentiating between the two roles. In the leading case of Zuijs v Wirth Brothers Pty
Ltd [1955], the control test was put forth. This test provides that a person would be