Employment and Industrial Law

The following information is advice for Mr Murray Kapp in regards to whether Mr Bob Mann of Weimar Investments Ltd is vicariously liable for the negligent conduct of Mr Barrie Bauer. In order for liability to exist, the contract between Mann and Kapp must be a contract of service (rather than for). To determine this, there are multiple legal tests that should be considered including, the ‘control’ test, the ‘organisation’ test, the ‘business’ test and finally the ‘multifactor’ test.
The Control Test is made up of three different facets of control, the ‘right to control’, ‘individual skill and judgement’ and ‘control over how work is done’. When considering the ‘right to control’ it must be considered whether control needed to be exercised or exercisable. In this case, no control was exercised or exercisable by Mann as the men work on their own terms with no instruction from Mann. ‘Individual skill and judgement’ determines whether workers with highly specialised skills could be employees. Here the facts found do not support an inference that Mann retained a lawful authority to command neither Kapp nor Bauer in the performance or the work they undertook to do as he does not expect any certain amounts of ore and work from either Kapp or Bauer paying them on a ‘per tonne of ore’ basis. Finding the degree of control exercised by the respondent over the applicant in the way he/she went about doing their work is known is the third step of the control test. The current case shows that Mann has no control over how Kapp and Bauer went about doing their work however from time to time Mann will telephone the men advising them of the quality of previous ore deliveries so they are able to use this as a guide to which part of the open face mine they should blast next. [FIND SUPPORTING CASE]
The purpose of the Organisation Test is to determine whether the applicant is ‘integral’ to the business. This method avoids the concepts of subordination and control and in place