| Summary |
JURISDICTION – Whether employee or independent contractor – Applicant signed “contract for services”, “identified as “contractor”, and respondent identified as “business owner” – Respondent argued contract for services, arrangement for applicant to provide invoices, and deduction of withholding tax, confirmed applicant independent contractor – Authority found under economic reality test applicant not in business on own account – Authority found under control test applicant more akin to employee – Found permission required to leave early and job sheet provided to respondent for work completed – Authority found under organisation test applicant clearly part of respondent’s business – Found arrangement for weekly invoice and withholding tax deduction not made by applicant – Found no evidence whether industry practice that car groomers engaged as contractors – Found applicant an employee – UNJUSTIFIED DISMISSAL – Applicant left jumper in office and respondent heard co-worker comment that it “smelt of marijuana” – Respondent asked receptionist to prepare memo for random drugs test – Respondent argued gave memo to every car groomer – Applicant claimed only one given memo – Authority found respondent stated had “no intention” of going ahead with drugs test – Applicant asked respondent whether required to have drug test – Subsequently applicant left glass of apple juice on respondent’s table claiming to be urine sample – Applicant drank apple juice in front of respondent – Respondent told applicant would not be given any more work until had drug test – Applicant admitted “joke” went too far and went to GP for drugs test – Applicant provided respondent with note saying drug test completed – Applicant claimed told by respondent would have no work whatever result showed – Respondent argued said no work until matter resolved – Applicant’s evidence preferred – Authority found respondent’s evidence work volumes fallen strong ulterior motive in actions – Respondent made further performance allegations – Authority found respondent’s actions in withholding work unjustified – Found respondent should have spoken directly with applicant about supposed marijuana smell before considering action – Found should not have issued memo announcing drug test with no intention of doing test and sought agreement to any test instead of demanding test with no contractual right – Found should have put performance concerns to applicant before withholding any work – Found should have waited for test results before taking further action – Found should have discussed stand down if any safety concerns – Dismissal unjustified – REMEDIES – Results showed no illegal drugs detected in applicant’s system – Authority found applicant entitled to reimbursement of 8 weeks lost wages – Authority found applicant suffered humiliation, loss of dignity, and injury to feelings from dismissal and unwarranted requirement to undergo drug test and abrupt cessation of work – However, appeared applicant had no apparent ongoing effects – $3,000 compensation appropriate – Authority found would have considered reduction for apple juice “joke” but for lack of good faith by respondent in issuing memo – Found would also have considered reduction if test results positive – Found no reduction for performance concerns as respondent failed to deal with matters at time or provide sufficient evidence to Authority – Car groomer |