Bob was employed by the RSL club on 24 June 2009 as a part-time sommelier in the Cellar Wine Bar at the club’s main venue in Harbour town. The club is comprised of five venues and employs 460 employees and 800 contractors. The club has policies and procedures, which included its Code of Conduct. Bob had attended annual training in relation to the Code of Conduct on 26 August 2011.
Bob had worked for the club for a number of years when the club decided that the bar work was going to be done by contractors. Bob was asked to arrange for an ABN and to put in invoices for his work. The club still supervised Bob and his role didn’t change other than invoicing for work.
During the course of business one day, it was alleged that a co-worker, Iris, had been the subject of sexually inappropriate comments from Bob, and bullying by him. The evidence was that the Bob had singled Iris out for attention, that the attention was unwanted and unwelcome, that Iris found the comments offensive and very rude and the experience gave rise to feelings of discomfort, embarrassment and anger. Bob’s evidence was that he did not single out Iris, that he and Iris engaged in light-hearted banter, and that Iris did not resist him or complain about him.
The club’s policies, procedures and Code of Conduct contained in its Employee Handbook described behaviour such as bullying and harassment. A further consideration was that there was inconsistency in the interpretation and application of the policies and procedures by leaders in the workplace and they often applied different values.
Bob was a mature worker and really didn’t understand the requirements of the club’s Code of Conduct, despite training.
1/ Is Bob now a contractor or can it be argued that he is an employee? Explain with reference to the common law test.
2/ If Bob is an employee, are the policies binding regarding Bob’s contract of employment? Explain with reference to case law.
3/ If the Club were to dismiss Bob, do they have a valid reason? Explain referring to legislation and case law.