QLD Employment Law - Should Employer Pay the Full Restitution Amount?

[Jannn]

The following is an idea of the situation:

The current matter is that a health insurance company has performed an audit on the practitioners of the company for the service history from 1 August 2014 to 31 July 2016 on 14 and 15 September 2016.

They are seeking restitution for funds paid on the basis that the charts are not present or not meeting professional requirements. Does the restitution amount requested by the particular insurance company need to be paid by the employer or employee?

The employer has offered to make a 30% contribution to the amount as well as wanting the employee to sign an agreement that charts and auditing by third parties in the future resulting in financial loss are the employee's responsibility.

The employee is to be a contractor in 1 January 2017. This employment arrangement was signed in June 2016.

My question is under employment law, does the employer have vicarious liability to pay the full restitution amount sought by the health insurance company when the practitioner was an employee or even as a contractor?

Should I sign this agreement in my position?

I look forward to your response and assistance in this matter.

Thank you so much!

 

[Sophea]

Sorry could you clarify a few things....you said that

a health insurance company has performed an audit on the practitioners of the company

do you mean the practitioners are employed by the health insurance company? Is the health insurance company the "employer" that you are talking about? And with reference to the below question, where do you fit into all of this?

Should I sign this agreement in my position?

Generally speaking while employers are vicarious liable for the actions of employees, they are not vicariously liable for damage caused by contractors in the course of their work because in theory contractors are in business for themselves and they determine what they do and how they do it and the employer or principal has no right to control how they do their work.

There are recognised exceptions to the general rule however, and the classification of a worker as a contractor is not an infallible means by which to avoid vicarious liability. In fact the court sometimes deems a person's status as either employee or contractor or neither immaterial to whether vicarious liability will arise.

 

[Jannn]

Sorry could you clarify a few things....you said that
do you mean the practitioners are employed by the health insurance company? Is the health insurance company the "employer" that you are talking about? And with reference to the below question, where do you fit into all of this?


Generally speaking while employers are vicarious liable for the actions of employees, they are not vicariously liable for damage caused by contractors in the course of their work because in theory contractors are in business for themselves and they determine what they do and how they do it and the employer or principal has no right to control how they do their work.

There are recognised exceptions to the general rule however, and the classification of a worker as a contractor is not an infallible means by which to avoid vicarious liability. In fact the court sometimes deems a person's status as either employee or contractor or neither immaterial to whether vicarious liability will arise.

Thanks for your reply Sophea. I am an employee of a clinic. And my employer is trying to get me to pay a share for the restitution requested by the health insurance company with him. I just don't think it is right. Because I was only the employee..

 

[Sophea]

I suppose your legal liability to contribute would depend on whether the breach was caused by you acting on your employer's directions and instructions or you acting off your own judgement.

 

[kimsland]

the employee to sign an agreement that charts and auditing by third parties in the future resulting in financial loss are the employee's responsibility.

The employee is to be a contractor in 1 January 2017.

I wouldn't sign that. (deed). To me the main employer (or actual contractor) is looking to palm off debts or confuse a future court action, utilizing his employees (or sham contractor - that would be you btw).

Why would anyone want to sign an agreement to be worse in a position?
Tell him you'll sign if it benefits you, not the other way around

Oh, that thing.. that'll never come up... sign here.

Um, forget it, I'm not risking court battles over your past stupidity business 'Contractor' adventures Coming into an audit issue? NO way.

My opinion.

 

[Jannn]

I wouldn't sign that. (deed). To me the main employer (or actual contractor) is looking to palm off debts or confuse a future court action, utilizing his employees (or sham contractor - that would be you btw).

Why would anyone want to sign an agreement to be worse in a position?
Tell him you'll sign if it benefits you, not the other way around

Oh, that thing.. that'll never come up... SIGN HERE.
Um, forget it, I'm not risking court battles over your past stupidity business 'Contractor' adventures Coming into an audit issue? NO way.

My opinion.

Exactly! The reason that makes me think the employer was being tricky was when he say ' hey they need you to pay this amount, I'll pay some for you if you sign this "deed" '. If it's not even his responsibility at all, why would he help me pay a portion of the debt anyways?

To be honest, who would offer to pay off someone else debt if you won't get any benefit from it? And we are not talking about a small amount of money here...

 

[kimsland]

Hey I'm glad you replied, I thought of a future (now hypothetical) conversation.

Judge: So you would like to be known as a 'Sham Contractor' so as to be seen as an employee and therefore not responsible for these debts?

Quivering You: That's right, Your Honor, I'm a Sham Contractor

Judge: Well since you did take the step to agree to these debts, I will award you pay 5% only, is that OK?

You: Thank Christ! Party time.

At Home:

Loving partner who stuck with you through last 3 years of high stress court battles: How'd you go hun?

You: I'm a Sham Contractor Hooray

Partner: Wow, glad it's over. I bet you'd like to go back in time and change all this? Since you owe 10K!

You: Yeah, yes I do

Wait; you're back in time now

 

[Arche]

Hi Jann

I would be very concerned about being changed from an employee to a contractor. Has something changed - calling you a contractor doesn't make it so? The ATO doesn't like that kind of thing, so etching sounds very off about this whole situation.

Kimsland- what are you on about?

 

[Jannn]

Hey I'm glad you replied, I thought of a future (now hypothetical) conversation.

Judge: So you would like to be known as a 'Sham Contractor' so as to be seen as an employee and therefore not responsible for these debts?
Quivering You: That's right, Your Honor, I'm a Sham Contractor
Judge: Well since you DID take the step to AGREE to these debts, I will award you pay 5% only, is that ok?
You: Thank christ! Party time.

At Home:
Loving partner who stuck with you through last 3 years of HIGH stress court battles: Howd you go hun?
You: I'm a SHAM Contractor HOORAY
Partner: Wow, Glad its over, I bet you'd like to go back in time and change all this? Since you owe 10K !!!
You: Yeah, yes I do

WAIT; you're back in time now

Haha you are so creative! Well, the funny thing is - since the post was a month ago, the employer only chased me once regarding the agreement, and I have refused. The question is - who paid the debt? I'm guessing the employer realised this is not gonna work and secretly paid it off.. I'm guessing this is why he wanted to change employees to contractors in the first place trying to avoid responsibility.

 

[Jannn]

Hi Jann
I would be very concerned about being changed from an employee to a contractor. Has something changed - calling you a contractor doesn't make it so. The ATO doesn't like that kind of thing.so etching sounds very off about this whole situation.

Kimsland- what are you on about?

Hi!

Well, the whole changing from an employee to a contractor discussion happened before this incident. But I still think the reason behind the employer's intention to change his employees to contractors was to minimise responsibilities and try to earn as much money as possible. Of course the ATO doesn't like it. But I am sure there are many other employers who is doing the same to minimise risk.