Body Therapy Pty Ltd is a beauty therapy company in Perth. They sell various beauty services to clients who want to improve their personal image. Body Therapy operates out of a square bright yellow building without windows, which is iconic and known for its striking colour. Susan, aged 21, is one of their full time therapists. She signed an agreement at the end of 2012, to operate from 1 January 2013 until 31 December 2017, stating that she was not an employee and that she would abide by all Body Therapy rules. Until recently, Susan wore a shirt that had a Body Therapy embroidered logo and received an agreed percentage of all services she performed. She also received a small base payment on a monthly basis. Susan paid tax on that income directly to the taxation department. Body Therapy recommends their workers register a business name for these purposes. Susan had set hours and received a half price discount on Body Therapy services. Body Therapy did not train Susan or the other therapists, rather they all attend a specialised training agency and Body Therapy pays for it.
Body Therapy have a social media policy that includes a prohibition on therapists posting comments that can be linked to Body Therapy and or its clients. On December 1 2017 Susan posted a comment on Facebook about an overly-hairy obese man who had come into her work for hair removal services, indicating he smelt bad and “left the yellow building smelling like a flower”. One of Body Therapy’s managers read the post and the next day dismissed Susan on the spot. The same manager also noted Susan’s promotion of her own “home-run” weekends-only beauty therapy business specialising in eyebrow design.
(a) Is Susan an employee or another type of worker? Use the current common law test.
(b) If we assume Susan is an employee, what is legal status of the Body Therapy policy, and has it been breached ?
If we assume Susan is an employee, is she is breach of any duty to Body Therapy in relation to her “home run” business?