Dr BioGerm has worked at the Australian oﬃce of Medical Marvels Pty Ltd since July 2018. When she commenced work at Medical Marvels she was provided with no contract as she had known the CEO of Medical Marvels for many years. She recollects that the CEO said that he saw no need for a ‘messy legal contract’ as they were friends and that it was better to keep things ‘casual’ so that the friendship was not lost.
Dr BioGerm has been the lead researcher in relation to the analysis and development of a variety of medical products, including vaccines, for many years of her career, including with Medical Marvels since July 2018. Dr BioGerm provided a document to the CEO, weekly, detailing her time spent working on analysis and development. At the end of each week, Dr BioGerm was paid an amount based on $70 per hour for time worked. Dr BioGerm has an ABN. At this stage, no tax has been paid in relation to any amounts paid to Dr BioGerm by Medical Marvels.
According to Dr BioGerm, the CEO said he was not concerned with where she worked or when she worked as he ‘did not want her creativity limited’. Innovation and flexibility are two key values of Medical Marvel’s Mission Statement.
When Dr BioGerm commenced with Medical Marvels, Medical Marvels was focusing its research on the development of a ‘virtual band aid’ – eradicating the need for a band aid to be pulled oﬀ the skin. This development in pain management was Dr BioGerm’s first research and development project with Medical Marvels. Dr BioGerm went on to work on various other projects, however she had developed a personal interest in curing ‘man-flu’ after being subjected to several days of domestic duties and visual and noise disturbance as a result of her male house-mate suﬀering from ‘man flu’. The analysis and development of a ‘man flu’ vaccine became her personal crusade. The CEO was aware of (and did not discourage) her interest in developing a man-flu vaccine, however the CEO viewed the virtual band-aid as the ‘break-through’ product for Medical Marvels on the basis that man-flu was likely incurable.
During small breaks on Monday to Friday and over a number of weekends, Dr BioGerm worked away on the development of a ‘man-flu’ vaccine. Some of the breaks and weekends were at the
Medical Marvels head oﬃce and laboratory. Whenever she went into Head Oﬃce she wore a lab-coat with the logo, Medical Marvels, and had a staﬀ security ID card to seamlessly enter and exit the building. Dr BioGerm kept a number of lab results and records on-site at the Head oﬃce and laboratory; the remaining results and records and her musings were kept in her home garage
After 12 months of toiling away on the analysis and development of a vaccine for man-flu together with other projects, Dr BioGerm took a holiday to deepest, darkest Peru in early July 2019 for 2 months. The CEO of Medical Marvels wished Dr BioGerm a good break.
The virtual band-aid was a success and was clearly identified as a product of Medical Marvels.
While Dr BioGerm was in Peru, a junior laboratory assistant was cleaning up a workstation at Medical Marvels when he came across various lab results and records relating to the development and testing of a ‘man-flu’ vaccine. The reports were written on unmarked A4 pieces of paper. Intrigued with the lab results and not considering who they might belong to, the junior laboratory assistant reviewed the records and followed the instructions according to the notes, albeit there was one word that was diﬃcult to interpret, so the laboratory assistant made a guess. Testing followed; the junior laboratory assistant concluded that a vaccine for the man-flu had been developed and informed the CEO of Medical Marvels at the end of July 2019. The CEO took to Twitter and announced the discovery of a vaccine for man-flu by Medical Marvels.
The ‘man-flu’ vaccine was procured by the Department of Health as soon as they heard the CEO’s announcement. An information campaign was launched by the Department in August 2019 to assure the public that the vaccine was safe and would provide immunity to the man-flu; the advertising campaign identified Medical Marvels as the owner of the vaccine.
On the plane back from Peru and now with 4G service, Dr BioGerm reads with surprise in the e-copy of Science Monthly that Medical Marvels has been awarded a significant contract with the Department of Health for provision of the ‘man-flu’ vaccine. The article in Science Monthly also referenced the ingredients included in the vaccine. Dr BioGerm noted that one of the ingredients was incorrect.
As the plane landed yesterday, Dr BioGerm opened her Facebook and Twitter accounts and posted the following:
My work has been stolen by Medical Marvels, or should I say, ‘Medical Mishaps’; the anti-vaxxers have reason to fear this vaccine.
The CEO of Medical Marvels was furious when he saw Dr BioGerm’s post; the share price for Medical Marvels dipped dramatically overnight.
Medical Marvels has a Social Media Policy that states:
Staﬀ are directed not to engage on social media in any capacity due to the highly specialised nature of work undertaken by Medical Marvels, however you are encouraged to ‘like’ our products on social media sites.
Dr BioGerm has come to see you and wants your urgent legal advice.She says that she wants to enforce her ownership rights in relation to the man-flu vaccine. She also tells you that she is meeting with the CEO tomorrow; he informed her last night via text that it will be a disciplinary meeting as a result of her breach of the Medical Marvels Social Media Policy and that she is an employee of Medical Marvels – she says this is news to her!
What is your advice for Dr BioGerm? Advice requirements
ADVICE FOR DR BIOGERM
Dr BioGerm can make the complaint regarding the charges of dishonesty and giving false or misleading statements about the Development of “Man-Flu” vaccine as well as raise the compliant before Department of Health about her development work on “Man-Flu” vaccine.
According to Division 130.3 Criminal Code Act, 1955,
(a) Dishonest according to the standards of ordinary people; and
(b) Known by the defendant to be dishonest according to the standards of ordinary people.
In this case of REG. v. ALLSOP 24 VLR 812, it was held that, the conspirators dishonestly agreed to begin the act which can cause deception to the Victim so that he has to suffer the economic loss. There are two elements required in ascertaining the dishonesty:
There is a legal maxim given by Lord Coke to attract the culpability of a Person:-
“Actus non Facit mens sit rea”
Dr. BioGerm had started working with Medical Marvels from July, 2018. As Dr BioGerm and CEO of Medical Marvels are friend, they didn’t entered into any written employment agreement. Dr Biogram reported the CEO on weekly basis about the projects undertaken with time spent on the research and development. She got the compensation at the rate of $70/Per Hour according to the working hours. She has an ABN, so she was not liable for paying tax on the amount received from Medical Marvels.
She had personal interest in development of “Man Flu” vaccine. Besides the Development of Virtual Band-aid, a project of Medical marvels, she initiated the development of “Man Flue” vaccine. The CEO of Medical Marvels knew that she had been working on development of “Mam-Flu” Project. On weekend and after working hours, She worked on her personal development project i.e. Man Flu. She pursued the development project at the head office and laboratory of Medical Marvels and she took the entry through her security card on weekend.
After completion of analysis and development of Man-flu vaccine, she took the holiday for 2 months. In her absence, One Junior laboratory assistant stole the various lab records and results relating to the development and testing of a Man-Flu vaccine. The CEO announced the discovery of a vaccine for Man-Flu by Medical Marvel on Twitter.
As Dr BioGerm came to know about this mishap, she also posted on her facebook and twitter accounts about the stealing of her development work. By this post, the share prices of Medical Marvels dropped adversely. According to the social media policy of Medical marvels, No staff member is supposed to post or comment on any activity as the work is highly specialized.
As per the given facts under the case and division 137.1 Criminal Code Act, 1955, it has been found that if a person gives a false or misleading information to another person, he is liable for an offence of giving false or misleading information.
FALSE OR MISLEADING INFORMATION
A Person gives a false or misleading information to another person, he is liable for an offence of giving false or misleading information.
PROCECUTION (Dr BioGerm):-
Dr BioGerm is having the ownership rights on her project “Man-Flu” so Court of appeal should give her the ownership rights of Man-Flu Vaccine. As she posted correct information with bona fide intention, So She would not be liable for any offence. She did to secure the misuse of the vaccine. The Court give compensation to her for inconvenience and costs of pleader and other expenses incurred. There was no formal agreement between Dr BioGerm and Medical Marvels and she was not working on fixed salary. She only had security ID for entry or exit into the head office and laboratory of Medical Marvels. Accordingly, she suffered the loss due to this mishap with her personal interest project “Man-Flu” vaccine. The Court should compensate her for this loss and give the proprietary rights on her Project.
As per above stated provisions, CEO of Medical Marvels and Junior Laboratory Assistant conspired together to commit the misappropriation and criminal breach of Trust because he deceived Dr BioGerm and stole the confidential documents and records of her Personal Project which was her property. CEO of Medical Marvels dishonestly gave false or misleading information on Twitter and Facebook that Medical Marvels developed the Man-Flu Vaccine. He has committed the offence of giving false or misleading information. She is also advised to secure her development work and records by using the Patent. Her Project shall be secured for future and she can protect her interests in the project. Therefore, it could be inferred that a Person gives a false or misleading information to another person, he is liable for an offence of giving false or misleading information and due to the good practice by Dr BioGerm, the Court should compensate her for this loss and give the proprietary rights on her Project