Legal and Workplace Health and Safety Analysis of Mama Mia Restaurant Case Study

0 | P a g e
The Business and Legal Environment

1 | P a g e
Table of Contents
Introduction..............................................................................................................................2
Part A.......................................................................................................................................3
Part B.......................................................................................................................................4
Part C.......................................................................................................................................6
Conclusion...............................................................................................................................8
References...............................................................................................................................9

2 | P a g e
Introduction
A party can be held liable under the tort for negligence if he/she owes a duty of care and
such duty was breached which resulted in causing harm to another party. Under this duty,
the aggrieved party can claim damages from the party who failed to maintain a standard of
care (Stickley, 2016). Generally, restaurants owe a duty of care towards their customers to
ensure that their rights are protected and appropriate standard is maintained by the
company to protect the right of its customers. This report will evaluate the case study to
provide legal advice to Roma, Mona, Charles and William to determine whether they have
any legal remedy available in the case. The liability of the employee and the employer
towards Roma and Mona will be evaluated along with the rights which parties have against
the waiter Sam. This report will evaluate the employment law policies in Australia to identify
whether Sam is an employee of Mama Mia or not and whether he breached his duties or not.
The rights of Mona under the law of torts will be evaluated along with the provisions of Work
Place Health and Safety Laws to determine that the remedies available for Roma, Mona,
Charles and William.

3 | P a g e
Part A
Issue
The issue is whether Sam is an employee of Mama Mia and who is his employer. Whether a
duty is breached by Sam and whether he can be held liable to pay compensation to Roma
and Mona.
Rule
An employee is defined under the Fair Work Act 2009 which provides that the relationship
between an employee and employer is formed based on the employment contract. It is often
called a contract for service in which the employee agrees to give his/her service to the
employer for a specific remuneration. Section 35 of the Act provides the definition of an
employer who is referred to a trading corporation, a financial corporation, Commonwealth,
Commonwealth authority, a body corporate and organisations operating in exclusive
economic zone (Austlii, n.d.). The doctrine of respondeat superior applies to the employee-
employer relationship in Australia. As per this principle, the employer has the vicarious
liability for the acts of the agents or employees. This doctrine can hold the employer liable for
the failure in the part of the employee to take care while discharging his/her duties.
In the recent judgement of Prince Alfred College Incorporated v ADC [2016] HCA 37 the
court provided that as per the vicarious liability, the employer can be held liable for the
actions of the employee which are taken within the course of the employment (Ryding &
Reisz, 2016). The employee owes a duty of care towards the customers to ensure that a
standard of care is maintained to protect their interest. As per this duty, the waiters are
expected to act in a way to ensure that the customers are safe (Rose, 2016). If they failed to
maintain a standard of care or failed to act in the required way, then they violate their duties
the customers as provided in the judgement of Vaughan v Menlove (1837) 3 Bing. N.C. 467
(Stephenson, 2012). The injury suffered by the customers must be caused directly due to the
negligence of the waiter in order to hold him liable. Based on the vicarious liability, the
restaurant or the employer can hold liable for the actions of the waiter which are taken within
the scope of the employment.
Application
In the given case study, Mona found a rotten cockroach in her drink when she visited Mama
Mia restaurant with her friends Roma, Charles and William. The cream soda was served by
the waiter Sam who denied his responsibility in the matter by providing that he is not aware