Boom Design Pty Ltd is a design company in Perth. They sell design services to clients who want to remodel their corporate image. BD operates out of a square bright red building with few windows, which is iconic and known for its striking color. Ruby, aged 21, is one of their full-time designers. She signed an agreement at the end of 2020, to operate from 1 January 2021 until 31 December 2022, stating that she was not an employee and that she would abide by all BD rules.
Until recently, Ruby wore a shirt that had a BD embroidered logo and received an agreed bonus percentage on all design services she performed. She also received a small base payment monthly, to cover her time and use of her car for work purposes. BD require all their designers to use cars that are less than five years old.
Ruby had set hours of work and received a mobile phone to use for work purposes. Ruby paid tax on her income directly to the taxation department. BD recommends their workers register a business name, for tax and other legal reasons.
On 1 August 2022 BD introduced a social media policy that includes a prohibition on designers from posting disparaging comments that can be linked to BD or its clients, along with a restriction on using social media during work hours. The policy also includes the statement, “disciplinary measures may be taken if staff fail to honor the policy”.
The policy is included in all induction booklets given to new staff. On 1 September 2022 Ruby posted a comment on Facebook about a client who had that morning entered a certain red building smelling like an alcoholic and when asked if she would like a drink responded with, “a whisky and soda will be fine”. One of BD’s managers read the post and the next day dismissed Ruby on the spot.
Is Ruby really an employee, or another type of worker, as her agreement indicates? Refer to decided cases that use the current common law test.
For the purposes of this part of the assignment, assume Ruby is an employee: Has Ruby’s behavior warranted her dismissal?
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