Employment Law

Description

Tom was employed in 2012 by Electrix Pty Limited (Electrix) as a qualified electrician, then transferred in 2014 to Electrix’s electrical appliances department as a customer service technician.  He was with the company for three years and was then laid off because of a shortage of work.  He was recalled on one or two occasions during 2018 and was trained to install home theatre television equipment.  At this time he was paid on an hourly basis.  Later in 2018, Tom was again retrenched.     The next year (2019) he was recalled but this time a new arrangement was entered into: he was to do exactly the same work but for a fixed price per set installed.  He continued to install the sets as he had been taught.     The company provided the necessary specialised equipment and gave him a new customer once he had finished each installation, but Tom could work in his own time and he provided his own transport.  There was no written contract.  On 1 March 2020, while carrying a television set into a house for installation, Tom collided a pedestrian walking along the footpath outside the house.     He dropped the television set on the pedestrian’s foot, which caused three bones to be broken.  The pedestrian has sued Electrix on the basis of Tom’s negligence.  The company says that Tom is not an employee, and therefore it is not vicariously liable for Tom’s negligence.     Was the relationship created by the 2019 arrangement that of employer and employee or principal and independent contractor?  What is the significance of the distinction in relation to legal consequences that may flow from the relationship?       Provide legal authority for your answer.