Reference no: EM131627610
Assume the following takes place in Australia and is subject to Australian law.
David commenced employment with XYZ in November 2008. He was employed as a cleaner on a full time basis up until November 2016. In that month he resigned from his employment in writing. XYZ had asked him to contract his services to DEF, telling him if he didn't resign he would not be provided with any more work. David also signed a letter stating that he understood the information supplied to him and agreed to accept the DEF offer as detailed in an information pack delivered to him. At a meeting of XYZ employees, the manager told David and other employees that nothing would change.
David understood he was a sub-contractor but was not clear on who he was contracted to, since XYZ still issued his work allocations and provided his cleaning materials and equipment. He was also supplied with a uniform, which he was allowed to wear if he wished, or not if he didn't. David still drove an XYZ van and used a mobile phone they supplied. He worked at the same sites he always had.
Last week David expressed his discontent with not being paid within a reasonable period of time. Since November his pay had not been deposited into his bank account until over a month after he had invoiced DEF. He considered this was not god enough and told XYZ he would no longer be cleaning the foyer of the buildings he worked in, only the offices listed on his job sheet.
Yesterday XYZ called him in to their office and told him he was no longer needed. He received no notice and no payment. There was no explanation given, and David believed his performance was not a factor since it was not mentioned.
(a) Was David still an XYZ employee? Refer to cases that use the current common law test
(b) If we assume David is an employee, have XYZ breached any federal legislation in relation to requiring him to contract with DEF?
(c) If we assume David is an employee, does his employer have any obligation to pay David for the work he has performed since last week and up until he was advised he was no longer needed?
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