Course of Action for Mel, Strengths and Weaknesses of Mels - Case Study Example

of action for Mel The complaints of discrimination because of the pregnancy of an employee are investigated and resolved by the Australian Human Rights Commission (AHRC), so Mel should go to AHRC. Mel may lodge the complaint either in writing or in the electronic complaint form available at the AHRC Website. In her complaint, Mel should give complete details of the potential ways in which she was discriminated against by Mr. Tenshus. These details include but are not limited to the details of the discrimination, the time, location, and context in which it occurred, any concerns that Mel might have regarding the possibility of the situation to get worse, and the contact details of witnesses (Tenants Advice Service, 2009, p. 4). In her case, Mr. Chuck and Dell can be involved as witnesses. AHRC resolves the complaints through the process of conciliation. “This is where the people involved in a complaint talk through the issues with the help of someone impartial and settle the matter on their own terms” (Australian Human Rights Commission, n.d.). The possible outcomes that Mel may expect from lodging the complaint include an apology from Mr. Con Tenshus, compensation for the lost wages, reinstatement to the job, and changes in the organizational policies. Relevant legislation and case law According to Section 7 of the Sex Discrimination Act 1984 that talks about discrimination on the basis of pregnancy, this Act applies on the discriminator if he discriminates against the aggrieved person on the basis of her pregnancy if the less favourable treatment of the aggrieved person is unreasonable under the given circumstances (comlaw.gov.au, n.d.). This Act also applies when the discriminator discriminates against the aggrieved person because of her pregnancy by requiring her to comply with such a condition or requirement that is complied with a substantially higher proportion of people that are not pregnant, or that is unreasonable considering the case’s circumstances, or with which the aggrieved person cannot comply. One condition of the application of the Sex Discrimination Act 1984 is for the organization to have more than 6 employees (Lawlink, 2002). Since the tiny office in Broadmeadow employed 8 people at the time when Mel worked there, the Sex Discrimination Act 1984 applies on it. There are a number of shortcomings in the use and effectiveness of the Sex Discrimination Act 1984; the focus of the Act on the complaints lodged by the victims of discrimination does not help in the resolution of the systemic discrimination. The complainants have inadequate support of adequacy. There are limitations in the rights of the regulatory agencies involved in providing the pregnant women with equal opportunity and that are responsible for the elimination of sex discrimination, that are encountered while initiating the claims and investigations of the systemic discrimination. The regulatory tools required to resolve the issues are insufficient and thus cannot provide much assistance to the organizations in the elimination of discrimination. Furthermore, the process of lodging the complaint and its advancement is time-consuming, costly, as well as overly legalistic. The enforcement provisions of the Sex Discrimination Act 1984 are insufficient with respect to the regulation’s terms as well as the extent of punitive damages imposed on the discriminator, especially in comparison to consumer protection legislation or the health and safety legislation. Strengths and Weaknesses of Mel’s Case One strength of Mel’s case is that her duty was frequently changed from doing the creditors work to doing the debtors work, although she was originally hired to do the creditors work. Another strength of her case is that Mel informed Mr. Tenshus of her pregnancy as soon as she learnt that she was pregnant. Yet another strength of her case is that no minutes of meeting were made in either of the two meetings that she had with Mr. Tenshus, although those meetings are mentioned in Mr. Tenshus’s response to the resignation letter generated by Mel. Mel had been moved back from the debtors work to the creditors work because, as Chuck told him, she had to climb a step-ladder to bring down the files from the top shelf. This bothered Mr. Tenshus as he sensed the risk of Mel’s fall. The Australian law obliges the employers to consider making adjustments in the workplace reasonable in order to accommodate pregnancy’s normal effects. To achieve this, employers need to settle the issues with the employee who is pregnant so that amicable solutions can be worked out (hr.anu.edu.au, 2007, p. 3). Mel assumes the right to enforce compliance with the prohibition placed on discrimination and can thus sue for redress. The power of HREOC is limited to responding the breach’s claim with an attempt to resolve the complaint through preliminary investigation using confidential conciliation. HREOC takes an impartial or neutral position while conducting conciliation. In case the conciliation does not work out, Mel has then the option of pursuing the claim by way of federal court, though she would have to comply with all legal trappings and formalities that the procedure entails (Smith, n.d., p. 100). One weakness of Mel’s case is that she has to do everything on her own since she is not a member of the union. Had she been a member of a union, the union could have lodged the complaint on her behalf since “[t]he Federal Sex Discrimination Act 1984 also permits a union to lodge a complaint on behalf of an aggrieved member or members” (Eyraud, 1993, p. 35). Importance of the supportive role that the unions play in such cases cannot be denied. One major drawback of Mel’s case is that almost four years have passed since Mel resigned from the company in April 2009. Preferably, to get her complaint addressed by AHRC, it was imperative that Mel lodged the complaint within the first year following the occurrence of the discrimination (ways2work, 2010). This means that she had the time till April 2010, whereas now it is March 2013. Possible outcomes of the complaint Upon receiving the complaint, the President of the Commission investigates it and attempts to get it resolved through reconciliation. It is beyond the authority of the Commission to establish that discrimination has taken place since it is not court. The main role of the Commission is to get the stance of the conflicting parties and try to resolve the complaint. The Commission generally informs the discriminator of the complaint and sends him a copy of the complaint. Mr. Tenshus may be thus asked to provide the Commission with a detailed response to the complaint. Mel may also be invited to participate in the conciliation if deemed necessary by the Commission. If the Commission does not manage to resolve the complaint through the informal process of conciliation, then Mel can take her complaint to the Federal Magistrates Court or the Federal Court of Australia. In any case, the possible outcome of the complaint depends considerably on the way Mel wants to be compensated for the damages caused by Widgets & Gadgets Pty Ltd. She might get anything from an apology to monetary compensation from the company. Conclusion From the details provided in the case study, it is evident that Mel has been the target of sex discrimination on the basis of pregnancy in Widgets & Gadgets Pty Ltd. Although she has been deprived of her rights on various levels, yet the fact that she was not provided with a safe environment during her pregnancy provides the strongest reason to lodge the complaint. Not only have her job responsibilities been altered frequently, but she has also been exposed to constant pressure of reducing the number of hours that she could work for. The process of meetings in the organization was quite informal and there is no documented evidence that Mr. Tenshus can use in support of his assertions against Mel that he has made in his letter in response to her resignation. Mr. Tenshus did not make the adjustments in the workplace that he was expected to make given the fact that he was timely informed of the pregnancy of Mel. In addition to that, Mel was not pregnant at the time she had joined the company. All of these facts strengthen Mel’s case and provide her with a solid foundation to lodge a complaint against the company under the Sex Discrimination Act 1984. However, Mel has spent several years since the discrimination happened which is an equally, if not more, strong point that does not go in her favour. Chances of success are not very bright for Mel yet if she can afford the cost of the procedure and the time and effort it takes to lodge the complaint individually given she is not member of any union, she should go for it. Since she is already too late, it is advisable for Mel to contact the people she could use as witnesses like Mr. Chuck and Dell and see if they are willing to give their testimonies in her favour. Their willingness or lack of willingness to provide support to Mel would place a decisive role in her chances of winning the case. References: Australian Human Rights Commission. (n.d.). What can I complain about? Retrieved from http://www.humanrights.gov.au/complaints_information/index.html. comlaw.gov.au. (n.d.). Sex Discrimination Act 1984. Retrieved from http://www.comlaw.gov.au/Details/C2004A02868. Eyraud, F. (1993). Egalite de remuneration entre hommes et femmes dans les pays industriels. International Labor Organization. hr.anu.edu.au. (2007). Information on ‘Pregnancy in the workplace’. Retrieved from http://hr.anu.edu.au/__documents/staff-equity/pregnancy-in-the-workplace-guideline.pdf. Lawlink. (2002). Discussion Paper 30 (1993) - Review of the Anti-Discrimination Act 1977 (NSW). Retrieved from http://www.lawlink.nsw.gov.au/lrc.nsf/pages/DP30CHP4. Smith, B. (n.d.). Australian Anti-Discrimination Laws – Framework, Developments and Issues. University of Sydney. Retrieved from http://www.jil.go.jp/english/events_and_information/documents/clls08_smith%20.pdf. Tenants Advice Service. (2009). Discrimination. Retrieved from http://www.taswa.org/infosheets/pdf/1.08_discrimination.pdf. ways2work. (2010). How to make a complaint. Retrieved from http://ways2work.business.vic.gov.au/parents-and-carers/your-rights-at-work/how-to-make-a-complaint. Read More