IRAC format marking - appropriate use of grammar and well formed sentences are expected - and remember to fully cite the cases you rely on.
Grading criteria
IRAC format marking - appropriate use of grammar and well formed sentences are expected - and remember to fully cite the cases you rely on.
There are no half marks.
A) Identify the legal issue
Identify the legal issue, not the factual issue. This is one sentence only.
Maximum score
1
Relevant law discussed
Relevant cases are discussed, with case principles. Only use cases that will be applied.
Maximum score
3
Application of law to the facts
Legal principles already discussed are applied to the facts of the question
Maximum score
3
Conclusion on the facts
The question is answered concisely, with a factual conclusion
Maximum score
1
B) Identify the legal issue
Just legal issue. No facts.
Maximum score
1
Relevant law discussed
Case law discussion. Only cases that are applied.
Maximum score
2
Application to facts
Application of legal principle to facts
Maximum score
2
Conclude on the facts
One sentence only answering question asked
Maximum score
1
C) Identify the legal issue
What is the legal issue?
Maximum score
1
Relevant law discussed
Discuss relevant cases. A single case is sufficient.
Maximum score
2
Application of law to facts
Discuss relevant cases. A single case is sufficient.
Maximum score
2
Conclude on the question asked
Answer question asked in one sentence.
Maximum score
1
Assignment Question
Sal is 53 and a designer. She works for a landscape development company. She has her own Australian Business Number and is one of ten designers currently working on a unique project at Virtual Project Management Pty Ltd. Sal also works as a barista most Saturday and Sunday mornings.
When Sal started working for VPM 5 years ago, she signed a contract that was headed Contractor Agreement. It said she was not an employee and was not covered by legislation that provided for minimum conditions of employment. It said that although she might work regular business hours, she was free to work for other employers if they were not competitors and if she only worked for others on weekends. It also stated that she must comply with VPMs policies, and listed some, including a bullying and sexual harassment policy. In addition, the contract made clear she was not entitled to be paid when she took time off. The contract said remuneration was paid on submission of invoices based on her time and that she was to perform assigned duties and responsibilities in a professional manner and in good faith. Sal usually worked from 8 am to 6 pm four days a week, leaving Fridays free. The contract included a promise she would not compete with VPM or use their intellectual property for her personal profit. VPM were obliged to give Sal feedback on her work performance at least annually in a meeting that compared her productivity with that of others at her level of experience. Sal does not recall ever having such a meeting. Lastly, there was a clause that clarified Sal could be terminated for intentional serious misconduct without notice.
The VPM bullying and sexual harassment policy was provided to Sal in an email at the beginning of every new financial year, and it defined what constituted unacceptable behaviour as well as various types of bullying and sexual harassment. The email emphasised that a firm approach was generally taken by the company. It required all VPM workers took intermittent online training and that included some testing of their understanding of the policy, noting that any ignorance of the policy was not an excuse for breach.
When Sal reported to work a few days ago, she was called to the People Management officers desk and told a complaint had been received about her repeated harassment of a fellow designer. The officer told her the report included that Sal had, on more than one occasion, made crude jokes about the workers sexual orientation in the lunchroom and had contacted the worker outside of office hours, suggesting catchups and by posting promiscuous pictures of the female anatomy on social media. Sal denies she directed any of the jokes or pictures at just this one worker and defended her allegations by saying all of the designers took part in making such jokes and sharing pictures to brighten their day. Sal says her effort at catching up with this worker outside of work were about trying to start a social club, and that she had made such contacts with other designers too. Later that day the officer emailed Sal to say that Sal was not to continue working for VPM while the complaint was investigated and until further notice.
Was Sal an employee, or another type of worker? Refer to decided cases and relevant legislation. Use approximately 500 words.
For the purposes of this part of the assignment, assume Sal is an employee: Is VPMs bullying and sexual harassment policy binding as a contract term? Discuss case law only and do not discuss any legislation in this answer. Use approximately 250 words.
For the purposes of this part of the assignment, assume Sal is an employee: Does VPM have a contractual duty to pay Sal while the complaint is being investigated? Discuss case law only. Do not discuss any legislation in this answer. Use approximately 250 words.
END OF QUESTION
