Reference no: EM133531160

Case Study: For over thirteen (13) years, Mary Taylor has been developing training packages for Drake Education Solutions (DES). Originally, the training packages she designed and compiled were for face-to-face training, however now most of the work involves developing online training courses. The online training industry is extremely competitive and training designers are increasingly using sophisticated software programs to provide animation, interactive events, and personalised learning.

Last week, DES sent Mary a text message terminating her contract. The termination was effective immediately. DES advised that its client organisations were finding her training packages dull and boring compared to those of developers working for other firms. Mary sent a return text message to DES saying that they could not just terminate her as she was an employee with industrial rights and entitlements.

Mary has subsequently visited an industrial lawyer and sought advice as to whether she could make a claim for unfair dismissal and, in the process, claim reimbursement under the Fair Work Act 2009 for various entitlements that DES had never paid her over the past 13 years, such as annual leave, sick leave, carer's leave when her mother was terminally ill, long service leave and superannuation. Mary provided her lawyer with a copy of her contract with DES.

The contract which Mary had signed with DES stated that she was hired to provide training resources when requested, that she was also free to work for other organisations in the same type of business, but that she must always be available to meet the deadlines that DES set and communicated to her. The contract also stated that DES would take a no-tolerance approach to Mary missing deadlines due to outside work.

While working for DES, Mary has had a permanent desk allocated to her, with her name attached and which she has decorated with a collection of cat figurines, his favourite animal. DES celebrates workers' birthdays with a morning tea and a gift (for which the staff collect money), and each year on her birthday, Mary has received another cat figurine for her desk.

DES has always required Mary to be in the office Monday to Thursday from 9.00am to 5.00pm. Mary normally worked on several projects simultaneously for DES and to meet deadlines, often worked till 7.00pm or 8.00pm at night and on additional days. Mary was required to provide her own laptop at DES, but she used all their other equipment such as printers, scanners and expresso machine. Mary had a DES business card for use if she visited clients to discuss their training requirements.

DES required Mary to use the company's software packages to design the training programs; she was not allowed to use any alternative, additional software. DES has invested heavily in this training software that provides for training that has a particular brand appearance that fits the DES 'vision'.

As her contract with DES states, Mary is paid for each training 'project' she completes for DES's clients. To receive her pay, Mary must invoice DES for the completed 'project' using her ABN*. On her invoices, Mary refers to herself as The Training Cat. On her training packages for DES, Mary names two authors: The Training Cat and DES. The sole owner of the copyright for the training programs is DES.

The contract also states specifically that Mary was engaged on a contract for service, that she is not entitled to any form of paid leave mentioned in the National Employment Standards, and that DES is not entitled to cover Mary for workers' compensation or superannuation. The contract also required her to make her own tax arrangements. Over the 13 years, Mary has not created training resources for any other company and she tells her lawyer, it would have been impossible to fit such work in, given how much work she did at DES. After listening to all that Mary has to say, and reviewing the contract with DES, Mary's lawyer says to her: Before I can answer any question about your industrial entitlements, we must work out whether you are an employee or an independent contractor.

* ABN is the Australian Business Number

Question.

After reviewing the facts, if you were Mary's lawyer, would you advise her that she is an employee or an independent contractor in his arrangement with DES? Using relevant law, provide a reasoned justification for your answer.