Reference no: EM13770872

Josie loved her new job. She was hired to sample soil for a mining company. Her contract said she could choose her own hours, although her income was calculated on performance of 37.5 hours a week and her work hours were to generally equate to that number of hours. The contract described her as an ‘independent contractor' geologist, and said she was not guaranteed any work. It also said she was responsible for her own taxation, insurance and any superannuation she chose to accumulate. Other terms included one on termination of the contract, requiring one months' notice by either party in writing.

Josie has an Australian Business Number and invoices the company the same amount each month, as instructed and exampled by the company work rules book. The same rules book prohibits Josie from working for any other mining entity while she is working for the company or delegating her work to any other mining entity, unless she has the company's written permission. In relation to workplace behaviour the book states that discriminatory behaviour by staff will not be tolerated and occasions discipline following a timely investigation. Staff are promised a report detailing the outcome of any complaint they might make.

Josie thought the people she worked with were all wonderful, although more recently she has had problems with her supervisor, Tim; and the regional manager, Thomas. Tim growled at her for coming in late one morning last month. He told her she was not to come in late unless she had a better reason than simply having to attend her spiritual meeting. He growled and swore at her again last Friday for the same thing, waving his fists in the air and shouting something about 'bloody Muslims'. Josie was upset and shaking following this incident. Tim has been polite since then, but when he issues her work instructions for the day he is disparaging about her capacity to complete the work in a suitable time frame.

A couple of days ago Thomas allocated her new and extra work on discovering she was taking prayer breaks in the recreation room twice a day for 30 minutes. When Josie asked why she was given extra work and the others weren't, Thomas told her it was because she must have too much time on her hands if she can afford to take prayer breaks. He added that if she couldn't cover the extra work he would have her contract terminated.

Not happy with her relationship with Tim and Thomas, Josie has recently complained to the Human Resources department about Tim's abrupt treatment and Thomas's allocation of more work. She told them she now feels she cannot choose her start time and cannot take breaks as desired, and is otherwise feeling disillusioned about her work. She does not say that she has started another casual job with a view to leaving if things do not improve.

Advise the company

· Whether Josie can claim she has a contract of employment
· Whether they are contractually bound to follow the rules book and investigate and report on the behaviour of Tim and Thomas
· Whether they have breached any common law duty owed to Josie even if they are not contractually bound to follow the rules book.