Assignment Details:

Violet is a Human Resources Administrator at August Publishing Pty Ltd. She answered an advertisement titled “Human Resources Officer, long term position, training provided, competitive salary and flexible working arrangements”. Violet works at August Publishing’s premises from 9 am to 5 pm from Monday to Friday. She undertakes an administrative role supporting a variety of human resources functions including payroll and accounts. She uses August Publishing’s company vehicle for running errands during her work hours and wears August Publishing’s signature uniform. Violet has an ABN and invoices August Publishing monthly on an hourly basis for her hours of work. While Violet pays her own tax, August Publishing make superannuation contributions on her behalf.

When Violet applied for her job she did not anticipate the difficulty she would have with her immediate supervisor, Jingles. She remembers when she attended the interview that Jingles, August Publishing’s Manager of Human Resources, asked her whether she was on Facebook and Instagram, and it was suggested that Violet add Jingles as a friend so August Publishing could find out more about her. Violet did not think at that time that her passion for exotic clothing and her religious beliefs would be an issue.

August Publishing have a social networking policy that requires employees to use their professional judgement in the use of social media and to be mindful of communications to August Publishing employees or communications which could be viewed by August Publishing employees. The policy also refers to August Publishing employees having a responsibility to ensure any references they make to August Publishing are factual and do not contain confidential information. Finally, the policy states that non-compliance will be considered misconduct. The social networking policy was first implemented last September, a month before Violet started working at August Publishing.

Violet enjoys working in HR and likes the payroll aspects of her job but increasingly struggles to work with Jingles, who teases her about her clothing choices and is always criticising her work.

A couple of months ago, Violet overheard Jingles talking with colleagues near to Violet’s office. Jingles’ comments seemed designed to be overheard. A particularly smarting comment referred to the “nut cases” that believe in reincarnation, a foundational tenet of Violet’s faith. The next day Jingles remarked to a senior colleague, in Violet’s hearing, “She needs to understand reincarnation is just a type of flower”, and “She will never work hard to get ahead in this business if she thinks she has more than one life”.

Last month, after a few birthday drinks with her friends, Violet went home and posted a note on her Facebook page, “Bosses don’t’ know as much as they think. They are ignorant, know-alls with zero fashion sense.”

During this time Violet has also had personal stressors and has developed an anxiety disorder. She has had to take a few afternoons off from work for doctor’s appointments. She must also take medication to deal with the condition. Any leave taken has always been supported by a medical certificate.

These last two weeks, Violet has worked late, for an extra two hours each day, to complete a complex pay run due to a number of recent redundancies. The relationship between Violet and Jingles increasingly deteriorated during this time. Jingles refuse to speak to Violet at all unless to criticize and at one point told Violet to “come back in your next life with some brains”.

Violet joined a group on Facebook dedicated to calling out bullying in the workplace. On one of her late-night shifts, Violet made a comment online that suggested annual reports contained manipulated statistics and that the only way to find out the truth about profitability was to ask the employees and clients. Another referred to how one of her female managers needed to ‘get over’ herself and that she was a bully. August Publishing’s managing director also follows this Facebook group. He has read Violet’s comments and is concerned about the impacts on the firm.

Advice August Publishing on whether they or Violet are in breach of contractual terms, and whether Violet can claim any legislative protection in relation to her religious faith. Consider the contractual basis of Violet’s work relationship with August Publishing first.

Assignment Questions:

1. Issue
2. Principle
3. Relevant Laws (Western Australia law)
4. Conclusion – Discuss implied terms of employer duties, the duty of care (Fair Work Act 2009)
5. Discuss employee duty to obey if it is

(1) Lawful and

(2) Reasonable – Using a multi-factor test to determine if Violet is an employee or contractor