Assessment tutorial questions Essay Example
Assessment tutorial questions
Topic 5 Employment Law
Will you be able to stop Pam from starting her new bakery?
Yes, Pam can be able to be stopped from starting her own bakery. Pam may claim that she is an independent contractor, and therefore, she has the rights to work wherever she desires. Despite the contract stating that she will be an independent contractor, it also has some clauses that control her decisions, about the business
(Crawford 2002, p, 131). One of the clauses was that she would not work as a baker in the region, for the next five years after the contract has ended. She has to follow this contract of employment, which determines when she can open her business after she ends the current contract. The agreement in the contract has to be followed so her decision on starting her bakery can be terminated. The common law states that one is an employee if the employer can control how, where or when they can work. The contract Pam signed, gives her employer, the right to stop her knew bakery.
Explain the type of evidence you would seek to decide if Pam is an employee or independent contractor.
The first evidence that would help in deciding if Pam is an employee or an independent contractor is the level of control the contract provides, over Pam. Determine if the contract allows the employer to instruct the employee and the employee to follow instructions (Crawford 2002, p, 131). The second evidence is if Pam was obliged to work for me or provide her services and if I was paying her for the work, which she did in the bakery. The third would be if she worked in my bakery or if we started the business together, by contributing the capital and if the contact allows her to work for other competitors. The last would be if the contract allows me to dismiss her any time as her employer (Fishman 2011, p, 258).
Why is it important to know if someone is an employee or an independent contractor?
It is important because there has to be a clear distinction between the levels of control exerted on each, over the type of work they do, and how they do it (Fishman 2011, p, 16). This is because not everyone who works is an employee. Independent contractors are allowed to earn a living from their own separate independent businesses, without necessarily having to rely on an employer. When an employer needs to offer the employees benefits, for example, health insurance and extra time pay, it is necessary for him to know who employees are and who the independent contractors are. This because the independent contractors, are not eligible for the health insurance covers, worker’s compensation insurance covers and extra time pay from the employer.
Employees and independent contractors have different legal protection rights, and therefore, it is important to know the difference between the two so they can be treated differently (Fishman 2011, p, 258). The difference between an employee and an independent is also important to know because both have different liabilities to pay taxes. This is important when preparing tax forms. The employees’ details and those of the independent contractors are reported in different forms. Under the common law, an independent contractor could be labeled as an employee, if the employer has the right to control the way they work and the period of their work. It is therefore important to know if someone is an employee or an independent contractor to discern the amount of control you can give to him or her.
Topic 6 Health and Safety/Workers Compensation
Explain whether you consider the company has breached the statutory duty of care under work health and safety law. Explain the different breaches that may have occurred and the likely result
The company has breached the statutory duty of care under work health and safety law. This is because according to the law, employers are supposed to ensure that “so far as is reasonably practicable,” protection is offered to the employees and even the visitors of the premises, by assessing risks and training employees (Creighton & Rozen 2007, p, 140). The guests suffered injuries because of negligence of the hotel’s management. This is because Maxwell, having arranged various excursions in the Island, knew that the drive through the sand dunes was dangerous and needed an experienced driver. Maxwell assigned Terry to drive them through the sand dunes. The manager knew that Terry had very little experience in driving since she had only gotten her driver’s license a year ago. The jeep therefore, rolled over, due to her inexperience. Maxwell, assigned them a four-wheel drive that had no seat belts and roll over bars, which serve as protection in case of accidents. Maxwell knew that the sand dune terrain was rough, and therefore, the vehicle had to be fitted with the two protective structures. The lack of roll over bars and seat belts caused the guests and the driver to have injuries.
The company in this case did not ensure safety precautions for the drivers and guests, for example, providing seat belts and roll over bars. The damages caused to the driver and guests are the evidence (Cuppett 2008, p, 20). The result of this is that the company will pay the medical expenses of the driver and guests and compensate them (Cuppett 2008, p, 21). The company breached the law by not training Terry the driver well and assigning her the duty of driving where she had no experience. The likely result of this is that the company could be closed down for lack of experienced employees.
What should the company have done to avoid breaching the law?
The company should have carried out a risk assessment to evaluate the changes that could be implemented to reduce accidents (Magnus, Martín-Casals & Boom 2003, p, 76). For example, Terry’s ability to drive through the dunes could have been tested, before he was authorized to drive the guests. He could then be instructed and trained further, to gain more experience. If the company found that Terry was not experienced enough after the assessment test, the company should have assigned an experienced driver the duty of driving the guests. Secondly, the company could have put protective structures in the vehicles, for example, seat belts and roll over bars that reduce the level of injuries in case of accidents. The company could have also given instructions to the guests on how to protect themselves from accidents.
What should Terry do to get compensation for his injuries? What type of compensation could Terry get? How likely is it that he will receive compensation?
To get compensation for his injuries, Terry should file a suit against the company because the company did not ensure his welfare and safety, while performing his duties (Hughes & Ferrett 2011, p, 11). Terry could get medical care compensation. It is very likely that he will get the compensation because he got the injuries, while performing his duties as per the instructions of the company. This therefore, qualifies him to be compensated. Terry could also be compensated over the days that he was out of work, due to the injuries caused by the accident. The probability of getting workers’ compensation is high because he got the accident while performing his assigned work in the company (CANE 2006, p, 70).
CANE, P. (2006). Atiyah’s accidents, compensation and the law. Cambridge [u.a.], Cambridge Univ. Press.
Crawford, T. (2002). Business and legal forms for photographers. New York: Allworth.
Creighton, W. B., & Rozen, P. C. (2007). Occupational health and safety law in Victoria. Sydney: Federation Press.
Cuppett, D. C. (2008). So you’ve been in an accident— now what?: A practical guide to understanding personal injury law. Los Angeles: Silver Lake Pub.
Fishman, S. (2011). Consultant & independent contractor agreements. Berkeley, Calif: Nolo.
Hughes, P., & Ferrett, E. (2011). Introduction to health and safety at work: The handbook for the NEBOSH National General Certificate. Oxford: Butterworth-Heinemann.
Magnus, U., Martín-Casals, M., & Boom, W. H. (2003). Unification of tort law: Contributory negligence. New York: Kluwer Law International.
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