HRM220 Assignment 2: Analyzing Omar's Employment at Devine Fashions

This case study examines the employment status of Omar, a night-shift security guard at Devine Fashions, a designer and manufacturer of high-end fashion garments. The analysis, conducted for an HRM220 assignment, utilizes the Economic Dependence Test (EDT) and Multi-Factor Test (MFT) to determine whether Omar was an employee or an independent contractor. The study considers factors such as the nature of the work, the level of control exerted by Devine Fashions, and Omar's investment in his work. The case further investigates whether Omar's dismissal was unlawful or unfair, referencing relevant sections of the Fair Work Act 2009. The analysis considers precedents and legal tests to justify the conclusions regarding Omar's employment status and the fairness of his termination. The case study concludes that Omar was likely an independent contractor and that his dismissal could be considered unfair. The study provides a comprehensive analysis of employment law principles in the context of a real-world scenario.

MANAGING WORKPLACE RELATIONS
ASSESSMENT 2_CASE STUDY
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Table of Contents
Introduction................................................................................................................................2
Question 1..................................................................................................................................2
Question 2..................................................................................................................................5
Conclusion..................................................................................................................................7
References..................................................................................................................................8
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Introduction
The study revolves around a stipulated case study, which construes of a disputed situation
that vouches for assessing the employment status of an individual along with evaluating the
mode of dismissal for the concerned victim. The study involved the concept of employment
along with identifying the legal provisions available for each of the following cases.
Question 1
Determine whether Omar is an employee or an independent contractor
Economic Dependence Test
According to the application and extent of the Fair Labor Standard Act, 1938 (FLSA), it has
been understood that the concise provisions construing the concept of law, utilizes an
Economic Realities Test, which is commonly known as the Economic Dependence Test
(EDT) (Grossman, 1978). The test has been incorporated for determining the working status
of an employee. It helps in the apprehension of whether a worker is categorically an
employee or a contractor in accordance with his operational status. As per Title 29 of the
United States Code (USC), section 230(g), the definition of an employee is broadly stated.
Section 230(g) states that an employee is an individual who is categorically entitled or
burdened with the task of being suffered or being permitted to work, in accordance with the
viable provisions of the concerned area of operation (Sekiguchi et al, 2017). EDT aids in
assessing the status through certain factors, for evaluating the feasibility (Whitt, 2016). They
are enlisted as follows:
● Assessment of the workers precise relation with business
● Impact of the Workers capability in accordance with the entity being affected with the
individual’s profit or loss
● Assessment of the intensity of the worker’s relative investment
● Assessing the nature of the concerned allocated work
● Intensity of persisting relationship between the employee and the worker
● Evaluating the degree and credentials of the control bestowed upon by the employer
The Federal Courts of Australia utilizes EDT for assessing its difference from the Right to
Control and also for assessing the viable status of the employee in accordance with the
requirement which tends to meet in lieu of the respective qualification of the concerned
individual (Popelier, 2016). It is a kind of multi-factor balancing test, which is also used at
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the time of determining the nature of an employee in accordance with the Family and
Medical Leave Act (FMLA) (Lopez and Blair, 2018).
Multi-factor Test
According to the concept of the multi factor test, it has been understandable that, it is an
evaluation of facts, which is performed by the courts for assessing the totality of the
concerned employment in accordance with its persisting relationship with the respective area
of operation. It aids in the determination of the exact status of the concerned employee, which
is further used for assessing the compensations of the respective individual in accordance
with the provisions laid down in the Employee Compensation Act, 1923. As per Sec 2(dd), of
the Employee Compensation Act, 1923, the definition of an employee has been laid down
(Walsh, 2015). It states that an individual is considered as an employee, if the individual is:
a) Under Section 2(34) of the Railways Act 1989, a railway employee
b) A master or crew member in a ship
c) The captain or crew members of an aircraft
d) A driver, mechanic, and similar others
e) A person recruited for work by any company abroad
Multi-Factor Test (MFT), which is commonly known as Common Law Test, is incorporated
in the implementation procedure in the Australian Courts for assessing the completeness and
precisive status of the worker in accordance with assessing it integral relation to the company
for grant associated claims, which emerges at times of discrepancies or disputes (Lobel,
2017). MFT is construed with various factors, which tends to perform the categorical
assessment performed by the test. They are enlisted as:
● Individual Relationship of the concerned employee
● Understandability of the consequent obligations
● Intensity of the control
● Evaluating the authority to dictate or control
● Representation of the individual concerning the code or norms of the concerned business
However, it has to be acknowledged that, Australian courts does not vouch for attaining
satisfaction of all these factors for drawing the conclusion or stating the decree, as the factors
construing the test can be limitless (Volokh, 2017). Likely, MFT is incorporated for
channelizing the flow of information, for assessing the nature of feasibility of the facts in
accordance with underpinning the status of the respective employee (Pearce, 2018).
Application of the tests to the case study
EDT
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As per the facts of the EDT is concerned, the assessment of the nature of employment of
Omar can be easily conducted. By analysing the factors, the assessment can be easily made.
Some of the factors are as follows:
● Assessment of the workers precise relation with business
Omar was an night-shift security guard of the company Devine. As per the facts of the
advertisement is concerned, Omar satisfies the conditions for constructing a precise
relationship with the company for being called as an employee of the company.
● Impact of the Workers capability in accordance with the entity being affected with the
individual’s profit or loss
Yes. As per the conditions of the employment stated in the case study is concerned, it has
been observed that Omar was responsible for his own profit, loss or other associated tax
provisions, which on the contrary, inclines his status towards the concept of being an
independent worker or a contractor.
● Assessment of the intensity of the worker’s relative investment
As per the facts of employment stated in the case study is concerned, it has been observed
that the investment of time rendered by Omar was more than half a day, which is
categorically a high relative investment, which inclines his status towards being an employee
of Devine Company.
● Intensity of persisting relationship between the employee and the worker
The definite period of contract persisting within the conditions as stated in the case, it is
however understandable that Omar is more likely to be a contractor rather than being an
employee. However, he has established a different company name Safe and Secure Pty Ltd.,
which again vouches for him being an independent employee or a contractor for the company
Devine.
MFT
While assessing the facts of the case through the factors of MFT, the totality of the
employment of Omar can be evaluated effectively. Some of the factors are:
● Intensity of the control
The control, which Omar had at night, was comparatively standard for being an employee.
He was burdened with the task of regular patrolling of internal and external premises
alongside supervising the premises in accordance with the utilization of the surveillance
equipment. This brings across a potential incorporated within Omar for being called as an
employee.
● Evaluating the authority to dictate or control
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As for the matter of surveillance, it has been observed that Omar was not given the control to
dictate or direct the authorities or other concerned officials. He is only bestowed with the
responsibility of performing his allocated work or obligation. Thus, this inclines the diction
towards the scope of being a contractor.
● Representation of the individual concerning the code or norms of the concerned business
It has been however, observed that, Omar was provided with a uniform, which was free from
any applicable charges, which counters the aforementioned factor and directs the decree
towards assessing Omar as an employee.
Final Determination and Justification
As per the facts of the case concerned, it has been categorically observed that there is a
probability of considering Omar as an employee as well as has a probability of being coined
or termed as a contractor. However, after aligning the final determination with the facts of the
case, it can be stated that Omar is an independent employee or majorly a contractor. It is
because the other viable facts of the case outline Omar to be an employee or a permanent
staff of Devine. However, the fact of having a definite work period and having a separate
established company of his own is excessively intense and feasible as compared to the other
stated facts. Furthermore, Omar did not have a Australian Business Number (ABN), for
being called as an employee in Australia. Thus, it can be very well stated that, Omar is an
independent employee rather being precise a contractor recruited by Devine, as a night-shift
security guard.
Precedents
In the case of United Marine Products v Angatiri, it has been observed that the court applied
certain legal test for assessing the nature of an employment and the status of an employee
(Allen and Landau, 2018). The fundamental diction of the case was that the employment
status of the individual was assessed collectively to measure the intensity of damages
incurred as well as the employment status for granting the claims arising against it. However,
the court assessed that the defendant was an independent employee or being precise, a
contractor thus, waiving all the damages incurred by the company as well as disapproving all
sorts of arising claims.
Question 2
Determine whether Omar has been unfairly dismissed (whether a contractor or not)
Unlawful Dismissal
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Under Section 772(1) of the Fair Work Act 2009, unlawful dismissal has been broadly
stated, which enumerates that an unfair dismissal is caused if an employee is terminated on
certain mentioned grounds (Power, 2017). Some of them are:
a) Temporary Absence of Work due to injury or illness
b) Discrimination at workplace
c) Absence for maternity leave
d) Temporary absence from work due to active participation in voluntary emergency
management activity
It has also been mentioned in the clause that contractors does not fall under the categorical
jurisdiction or ambit of the provision of Unlawful termination (Stewart, 2016).
Unfair Dismissal
Form F2 of the Termination of Employment under the Fair Work Act, 2009, outlines the
concept of unfair dismissal (Supanti et al., 2015). An unfair dismissal takes place if:
a) No valid reason for the dismissal
b) No provided notification in accordance with the dismissal
c) No opportunity was provided for responding to the application of dismissal
d) No prevalence of previous warning regarding the work or operation concerned
e) Harsh or Unreasonable dismissal
It has also been mentioned in the criteria that one can file a suit against the operating
company in accordance with the concept of unfair dismissal, only if, the individual has been
working for 6-12 months in the concerned disputed company (Howe et al., 2018).
Final Determination and Justification
Thus, it has been skillfully observed in accordance with the facts of the case that, Omar does
not fall under the category of unlawful dismissal as he is not solely an integral part of the
company, as for his innate nature being as an independent employee, or a contractor to be
precise. Moreover, as the factors of the concept do not provide a valid reason for assessing
the facts of Omar, the concept of unlawful dismissal cannot be incorporated within its
operational extent. On the other hand, the concept of unfair dismissal perfectly fits within the
characteristics and transitions observed in the case. The concept of harsh dismissal along with
unjustness and no mentioned warnings, the termination of Omar can be treated as unfair
dismissal or termination. It has been further observed that, the criteria for filing a suit of
unfair dismissal is also fulfilled by Omar that is six to twelve months of employment, which
in his case is 12 months. Moreover, unfair dismissal covers both an employee as well as a
contractor, which further paves the way for filing a potential suit for the concerned
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unreasonable termination. Thus, the diction can be laid that, Omar has been unfairly
dismissed and has the potential of filing a suit against the unfairness embedded within the
system by Chloe.
Precedents
As in the case of Mr Scott McIntyre v Special Broadcasting Services Corporation T/A SBS
Corporation, it has been observed that the plaintiff, Mr. Scott, a contractor of the respondent
company was deprived from attaining fair hearings conducted within the ambit of the
company for his dismissal and terminated him. This compelled him to file a suit (Mildren and
Cremean, 2016). The respondents intentionally barred the plaintiff from exercising his
entitled rights (Rogers, 2016). The court after analyzing the facts of the case, laid down
diction in accordance with the concept of unfair dismissal, as he has been restricted from
exercising his rights embedded from the inception.
Conclusion
Thus, as per the flow of facts of the case, and appropriate interpretation of the provisions
available in the directory of law, it has been observed that Omar was a contractor as well as
was dismissed unfairly. This waived every posed allegation on him as well as provides him a
valid ground for filing a suit against the company in dispute.
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References
Allen, D. and Landau, I., 2018. Major court and tribunal decisions in Australia in 2017.
Journal of Industrial Relations, 60(3), pp.397-413.
Grossman, J., 1978. Fair Labor Standards Act of 1938: Maximum struggle for a minimum
wage. Monthly Labor Review, 101(6), pp.22-30.
Howe, J., Berg, L. and Farbenblum, B., 2018. Unfair Dismissal Law and Temporary Migrant
Labour in Australia. Federal Law Review, 46(1), pp.19-48.
Lobel, O., 2017. The gig economy & the future of employment and labor law. USFL Rev., 51,
p.51.
Lopez, P. and Blair, S., 2018. Coordinating family and medical leave. Nursing management,
49(3), pp.7-8.
Mildren, D. and Cremean, D.J., 2016. The appellate jurisdiction of the courts in Australia.
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Pearce, J.A., 2018. The Future of Independent Contractors and Their Status as Non-
Employees: Moving on from a Common Law Standard. Hastings Bus. LJ, 14, p.1.
Popelier, P., 2016. Federalism Disputes and the Behavior of Courts: Explaining Variation in
Federal Courts’ Support for Centralization. Publius: the journal of federalism, 47(1), pp.27-
48.
Power, C., 2017. The Fair Work Commission's new approach. Governance Directions, 69(9),
p.540.
Rogers, B., 2016. Employment rights in the platform economy: Getting back to basics. Harv.
L. & Pol'y Rev., 10, p.479.
Sekiguchi, T., Li, J. and Hosomi, M., 2017. Predicting job crafting from the socially
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status. The Journal of Applied Behavioral Science, 53(4), pp.470-497.
Stewart, A., 2016. Continuity and Change in Australian Labour Regulation: Work Choices,
Fair Work and the Role of the ‘Independent Umpire’. U. of Adelaide Law Research Paper,
(2016-45).
Supanti, D., Butcher, K. and Fredline, L., 2015. Enhancing the employer-employee
relationship through corporate social responsibility (CSR) engagement. International Journal
of Contemporary Hospitality Management, 27(7), pp.1479-1498.
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Volokh, A., 2017. Privatization and the Elusive Employee-Contractor Distinction. In
Prisoners' Rights (pp. 71-146). Routledge.
Walsh, D.J., 2015. Employment law for human resource practice. Nelson Education.
Whitt, J.T., 2016. Welcome to the Working Week: The Minimum Pleading Standard for
Unpaid Overtime Claims under the Fair Labor Standards Act of 1938. U. Cin. L. Rev., 84,
p.1455.
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