Employment Law and Potential Liability - Assignment Example

Employment Law Student Name: Instructor name: Unit Name: Date: Question 1: 1) Discuss all potential liability Bob might face pursuant to federal discrimination laws for his own actions and the actions of Stan. (State grounds and area) (7 marks) Under Section 15 of the Disability Discrimination Act 1992, “it is unlawful for an employer acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the person’s disability”. Based on this statute, both Bob and Stan contravened this law by creating bottle-necks during recruitment process of workers at their hotel. Bob being an employer with a bias towards a “perfect employee” invented hiring procedures which are effectively extra-judicial in nature (Bandelj and Sowers, 2010 p. 117). As much as employees who possessed cars and driving licenses were of greater benefit to the company than those who lacked, it was against the law for him to discriminate against others who were qualified but lacked the requisite tools of trade. The above stated law provides a labor environment where the workplace provides for equal opportunities to everyone interested in the business or enterprise (Patmore, 2004). Stan is a manager working for Bob who has empowered him to apply the said oppressive hiring ethos including oppressive work ethics that discriminate against persons with disabilities. Stan proceeds to hire Wendy through a competitive process that earns her the job of a casual bar attendant as advertised. However, upon realization of the fact that Wendy has got a hearing impairment, Stan begins to discriminate against her by sidelining her on the duty roster and even maligns her in front of her fellow employees.The law prohibits an employer from taking advantage of workers as well as discriminating them on the basis of gender, race and so forth. Stan’s behavior as Wendy’s supervisor is ill-founded and retrogressive. Upon admission into the company, Wendy was entitled to equal if not fair treatment with other workers in order to achieve her career objectives perpendicularly. Stan’s behavior is not only unconstitutional, its non-professional thereby exposing his employer Bob to civil suits and damages. We know that Wendy’s hearing impairment caused unnecessary delays in delivery of services at the motel but that did not permit her seniors from undermining her contribution without providing her with sufficient support such as hearing aids as facilitation for her work. As such, Stan predisposes the company plus his employer to legal challenges which could result in expensive compensation for damages perpetuated against Wendy during her tenure at the hotel. 2) What other federal law might be relevant and explain how this might assist Wendy? (1 mark) Under Section 6 of the Disability Discrimination Act (on Indirect Discrimination), “there is need for reasonable adjustments in favor persons with disability towards facilitating their capacity and potential to perform their duties at workplace competitively.” These reasonable adjustments are inherent in the law for the main of guiding employers in the manner in which they recruit, train and reward their workforce. The rationale of the said adjustments is enshrined in the spirit of fair play and provision of equal opportunity to employees at workplace (Byrnes, 2009). As such, Wendy was entitled to reasonable adjustments such as being provided with hearing aids that could facilitate her work as a bar attendant thereby helping her communicate more effectively with customers. The main reason why Wendy’s supervisor, Stan undermined and discriminated against her is because she could process orders from customers effectively due to a hearing impairment. This impairment made things even worse when loud music was being played rendering her redundant. Within the framework of this legal adjustment, Stan took advantage of Wendy by sidelining her in entirety with a view of terminating her duties in the most embarrassing way possible. 3) Discuss the potential liability Stan might have pursuant to federal discrimination laws? (3 marks) Section 35 of the DDA (Harassment in employment DDA), provides that Stan is liable to prosecution for not only undermining Wendy at the workplace but also causing her sufficient embarrassment on account of her disability. He taps Wendy on the top of her head and says “you better get it into your thick head I don’t like mistakes around here”. This harassment is perpetuated deliberately by Stan to intimidate the disadvantaged bar attendant with the ultimate aim of exposing her to unfair dismissal. By micro-managing Wendy, Stan is liable to prosecution for a crime of harassment in employment in a situation where a physically-challenged worker is involved. Stan should be compelled to explain why he opted to deny Wendy the lucrative night shifts as well as causing her a lot of agony in the presence of fellow workers mischievously. It is worth noting that Wendy secured her job competitively after advertisement was made. She responded and was hired by Stan on behalf of Bob, the supervisor having full knowledge of the working environment at the bar. We cannot assume that Stan failed to notice Wendy’s hearing impairment during the interview. The law also prohibits bullying at the workplace since it violates labor relations between employer and employee leading occupational health hazards. Bullying creates a hostile working environment which cannot allow for effective realization of business objectives nor career goals both at the corporate level and at individual level. 4) Are there any defenses or excuses that could apply to Bob and Stan? (5 marks) Bob and Stan are fundamentally guilty unless proven otherwise. Based on the “Anti-Discrimination Laws, Workplace bullying and harassment”, Bob business culture at the bar is faulty and discriminatory in nature. He has failed to comply with the labor requirement for “an equal opportunity employer” where workers can deliver effectively beyond any form of discrimination. The Federal Laws are quite clear in the manner in which employers should hire and fire workforce. The spirit of these laws rests on the sanctity of human dignity and fair play. Demands presented by Bob as the hotel boss on the would-be employees to have cars and driving licenses is discriminatory. Applicants who did not possess cars and licenses failed to secure the job. Despite having cars, it is expected that applicants should have been subjected to a more professional criteria for recruitment. Bob, as an employer, can argue that employees need tools of trade to practice their duties professionally. However, this defense amounts to mere excuse since employers are expected to provide necessary tools of trade to their employees in order to facilitate their work. On the other hand, Stan can also defend himself against allegations of harassment, discrimination and bullying based on his mandate as an erstwhile supervisor who was keen on ensuring service delivery is realized at all costs. Stan can argue that poor customer service could not be tolerated in a hotel business where processing of orders must be done as effectively as possible. This argument is perpetuated by the notion that business exist for purpose of making profits and should not merely protect rights and freedoms of persons with disability expressly in adherence to the law.In spite of this argument, Stan is likely to fail in presenting a strong defense because of the crippled business culture at the hotel where the recruitment process is faulty in addition to non-professional work ethos. Both Bob and Stan can defend their arguments based on genuine business interests in a competitive world and congested markets that require stringent measures for survival. 5) If Wendy didn't have a disability what other actions could she take? (2 marks) Wendy is empowered by the law to seek of gainful employment as well as pursue her career dreams without being discriminated against. Wendy should have sought for appropriate compensation in a court of law for unfair treatment at work by her employer exemplified through deliberate bullying practices leveled against her. She could also challenge her employer through a civil suit for alleged harassment while duty by her supervisor manifested through malicious practices which include physical assault. References Australian Capital Territory Discrimination Act 1991 (ACT). 1991 Australia Human Rights Commission. 2007. A guide to Australia's anti-discrimination laws. Retrieved 13th September, 2012 from http://www.hreoc.gov.au/info_for_employers/law/index.html Australian Human Rights Commission Act 1986. 1986. Bandelj, Nina and Sowers, Elizabeth. 2010. Economy and State. Cambridge: Polity Press Disability Discrimination Act 1992. 1992 Byrnes, Bronwyn. 2009. Improved Protection of Disability Rights: Disability Discrimination Act 1992 Amended. Ethos: Official Publication of the Law Society of the Australian Capital Territory, No. 214, pp. 22-23. Patmore, Glenn. 2004. The Disability Discrimination Act (Australia): Time for Change. Comparative Labor Law & Policy Journal, (24)4, pp. 533-562, Summer 2003 (published December 28, 2004). Western Sydney National Disability Coordination Officer Program. 2009. Disability Discrimination Act at Work. Retrieved 13th September, 2012 from http://pubsites.uws.edu.au/ndco/employment%20NDCO/dda.htm Question 2: 1) Review the Fair Work Act 2009 (Cth) Explain if Peter is entitled to bring a federal unfair dismissal claim? (2 marks) According to the “Fair Work Act 2009 (cth)”, employees are entitled to equal remuneration as well as sufficient protection against discrimination through provision of elaborate mechanisms for handling complaints. Peter is indeed entitled to a federal suit for unfair dismissal in due to the fact that his boss Bob merely terminated his employment without following a professional procedure clear to both parties. Indeed, the State Fair Work Act 1994 stipulates that all workers who feel that they were unfairly terminated have a right under law to apply to the Industrial Relations Commission of South Australia. Essentially, Peter is perceived to unruly, lazy and disobedient by his employer who runs the company without a properly instituted human resource department. Under the Fair Work Act 2009, Boss is required by law to provide an enabling environment for his employees to perform their duties expeditiously. It calls for professional management of duties, particularly relating to human resources. There should have been well-constructed policies and procedures at the timber company which should also include elaborate mechanisms for staff recruitment, training and reward schemes. Peter is reported to be having problems performing work-related duties and his boss is unhappy with him. The manner in which Bob dismisses Peter is quite suspicious since Bob is both the Managing Director of the company and the Human Resource Manager Resulting in a labor dispute, effectively a conflict of interest. Additionally, very little has been done in terms of staff training in order to allow for Peter to improve his job performance. According to the Fair Work Act 2009, management responsibility is paramount in addressing problems associated with poor work performance, employee attitude and retention strategies. The boss should therefore be held liable for unlawfully dismissing Peter from work without following due process exemplified through professional human resource practices. 2) Assuming Peter is able to bring such a claim, discuss the different basis upon which his termination may be considered harsh, unjust or unreasonable (refer to both legislation and case law) (10 marks) Peter’s dismissal is in contravention to the spirit and letter of the Fair Work Act 2009 (Cth) in many ways. The termination of his contract is spontaneous and without sufficient legal merit. There are no clear guidelines through which Bob hires and fires his employees except through impromptu decision making interventions yet laws against unfair dismissal require that notice/ warning be given in writing (Keats, 2004). Peter and Bob have personal issues with each other which have spilled over into business. That Bob has been entertaining such unbecoming from his employee with a poor job performance is unbelievable. We can assume that Bob chose to give Peter time to improve his job performance except this remains speculative given the manner in which he finally sets him up for termination. The events leading to Peter’s dismissal appear stage-managed for the ultimate dismissal. Peter has not been given an opportunity to improve on his work-output since Bob has not provided for clear mechanisms for employee training and staff motivation. Based on the fact that Bob’s company does not operate with a functioning human resource department, Peter’s job evaluation is likely to be faulty. There is no clear-cut criterion for staff recruitment at Bob’s company leaving much to desire from the management particularly when labor issues are concerned. Assuming Peter was hired through a competitive process, the emerging issues surrounding his dismissal could be based on foul play or professional misconduct by his employer. 3) What is the likely outcome/remedy (2 marks) A fair judgment is likely to favour Peter who might very likely be reinstated back to work and adequate compensation paid on the basis of the principle of unlawful dismissal and labor impropriety (Fair Work Australia, 2012). Bob, as an employer, failed to document in writing consecutive warnings of poor performance by Peter. Repeated cases of bad blood pitying employer and Peter occasioned by recurrent cases of mediocrity at workplace should have been filed and copied to relevant labor authorities and trade unions as a mandatory dueprocess prior to employment termination. As such, Peter should be vindicated by either being reinstated to work or being adequately compensated in accordance with the law. 4) Would your answer be different if Peter was also the union representative and Bob said at the conclusion of the meeting “another union’s guy gone, great??” (4 marks) Whether Peter was a union representative or not is quite irrelevant since he is first and foremost an employee like any other. Trade unions fight for the better welfare for its members at workplace. In an organized and professional business organization, employee motivational techniques are part of the business culture. In addition, labor laws facilitate effective professional practice. According to the Fair Work Act 2009 (cth), all employees are entitled to “equal remuneration” and protection from discrimination. As a union official or member, Peter would still be entitled to a proper working environment and pay. Unlawful dismissal would in effect have attracted an even greater penalty in view of legal provisions that protect unionized employees in whatever organization. References Fair Work Act 2009 (Cth). 2009 Fair Work Regulations 2009 (Cth). 2009. Fair Work Australia. 2012. Guide—Unfair dismissal. Retrieved 13th September, 2012 from http://www.fwa.gov.au/index.cfm?pagename=resourcefactsunfair Keats, Sasha. 2004. Unfair Dismissal. Arcus Legal. Retrieved 13th September, 2012 from http://www.arcuslegal.com.au/law_briefs_pdf/unfair_dismissal.pdf State Fair Work Act 1994 (SA). 1994. Read More