Terms and conditions of service in a job relationship can be created by articulate oral agreement or through the conduct of the parties involved (Miller & Jentz, 2009). New and modified terms of a contract can take place if a worker has been employed for a period of time that is reasonable and where the employment has undergone changes. Changes such as promotions, increase in remunerations among other things may change the employment contractual terms and have to be mutually agreed explicitly or by the parties’ conduct.
In this paper, will be an elaborate discussion of the true nature of the contractual relationship between Jane Jones with Total Mechanic Management Services Pty Ltd (TMMS). An application of legal principles to the facts of the case and legal issues identified will be used. (Miller & Jentz, 2010).
Legal Issues in the Case
Jane upon reading of the advertisement for the job offer presented by TMMS in June 2009 and accepted to commence her employment term on 1st July 2009. Jane having not signed any contract, she accepted terms and conditions that were stipulated in the employment contract after a brief discussion with Sam Smith who was the owner/ manager of TMMS (Lagesse & International Bar Association, 2006). In spite of the terms and conditions not being signed by Jane, she expressly conceded to them and therefore the agreement was sealed based on the conditions that they discussed with the manager.
During the January meeting, the manager of TMMS pronounced that he wanted to make some changes due to rising costs of labor. After she had read the 10 page document entitled ,”Independent Contracting Agreement,” the manager of the company explained to her about the contract. Jane was convinced and satisfied with the provisions of the contract and signed it (Davis, 2007). This impliedly means that she concedes with the liabilities and obligations that are accompanied with the revised independent contracting agreement. Jane read the front page, which had a condition that the parties to the agreement were not in an employer/employee relationship. However, the issue of payment remained the same i.e. paid on hourly basis. When Jane was involved in a road accident and her right arm permanently impaired it was obvious that the company would take care of her. The company did not take any responsibility and later her services to the company was terminated (Blanpain, 2010). However, in this context, there is no need for the provision of a reasonable notice since from information given; Jane would not be able to continue with the work as she had her right arm impaired.
Discussion of the relevant legal principles
A contract of employment comes into being when an offer of employment is made and accepted on terms that are mutually agreed or stipulated by the putative employer when inviting job applicants (Lewis & Sargeant, 2004). The terms can be express or implied; the former relate to issues such as pay, job description while the latter relate to the employer’s task of care to the employee and mutual trust between the employer and the employee. This can be inferred from (Morley v Heritage plc  IRLR 400, CA). Though express terms usually prevail in cases where there is a conflict between implied and express terms, the termination of employment for Jane while at the hospital was inappropriate (Farnham & Institute of personnel Development, 2000). TMMS had an implied duty to take reasonable care for the health and safety of Jane as held in (Johnstone v Bloomsbury Health Authority  ICR269, CA).
TMMS did not give time to Jane to go through terms and conditions of the Independent Contractual Agreement (Andrews, 2011). The document could have contained significant information concerning Jane’s relationship with TMMS and she could have opted for another decision. Given that TMMS was silent on the relationship between it and Jane, it can be contended that it had an implied duty of care, medical attention and compensation in case of an injury while Jane was on duty working for TMMS.
Application of legal principles to facts
Given that Jane and TMMS entered into an agreement through heeding to terms of offer and acceptance, their contract was enforceable. In this case, Jane and TMMS discussed on terms of the contract and were in agreement, implying that the contract was valid and enforceable in case of breach of terms highlighted in the agreed conditions (Blanpain, 2010). Changes in contractual terms to have Jane prepare invoices for tasks that she performed were executed with a mutual consent as she signed the independent contractual agreement.
There have always been conflicts between the implied and express terms during the formation of a contract. This usually occurs when conditions stipulated in the contract are silent on some aspects. In this case, TMMS did not specify terms relating to injuries and health of Jane while she was executing services on behalf of TMMS (Berkowitz, et al 2008). The contractual agreement was not read by Jane as she signed it for fear of losing her job. The manager of TMMS did not offer valid and comprehensive information concerning the relationship between the organization and Jane, whilst she offered her services. In this case, if Jane seeks for jurisdictional intervention, TMMS is liable and obliged to pay for damages and compensate her.
There are numerous tests to ascertain, whether Jane Jones was an employee, or contractor .These tests are: intention test, control test, integrated tests, multi-factor test, we will invoke the multi-factor test for Jane’s case. This is the most accurate and reliable form of test and basically gives a weighting to the criteria such as degree of control, expectation of work, superannuation, hours of work, mode of remuneration, and parties’ belief as to their working arraignment among other facets (Alibekova, Campbell & center for International Studies, 2007). The multi-factor test raises some concern as to whether the relationship between Jane and TMMS is that of an independent contractor or an employee. For instance, the mode of remuneration applies is based on a flat rate performance, just as employees are paid. She was also required to wear a uniform while performing her duties and all tools and requirements she needed were provided and maintained by TMMS. This affirmation makes Jane to be viewed as an employee of TMMS and not as an independent contractor; this contention can be referred to in Humberstone v Northern Timber Mills (1949) 79 CLR 389.
In conclusion, contract between initial contract entered into between Jane and TMMS was enforceable because it was based on principles of offer and acceptance. The changes in terms of employment as stated in the independent contractual agreement were hidden from Jane by the manager/owner of TMMS during their discussions (Davis, 2007). Jane was injured while she was in line of duty executing her duties in the name of TMMS; therefore, the implied statutory duty to have the employer to take care of the health of the employee applies. This affirmation implies that TMMS breached the contract and was liable for compensating Jane for damages she bared. This is emphasized by the series of tests of control that Jane is an employee and not independent contractor of TMMS (Alibekova, Campbell, & center for International Studies, 2007).
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