Australian Employment Laws - Assignment Example

Australian Employment Laws By Name Course Instructor Institution City/State Date Australian Employment Laws Question four The relationship that exists between employers and employees is normally governed by the duties imposed on each of them by the existing employment contract. Therefore, this is to say that employees such as Franare bound to adhere to the duties imposed on them by the employment contract. In this case, Fran’s position in the company has enabled her to come across confidential information regarding the operations of the company. However, Fran being an employee is under a duty not to disclose such confidential information without the authority of the employer. Therefore, by disclosing such information she would be in breach of her duties as an employee. Additionally, the duty for non-disclosure of confidential information also prohibits employees from using such information to gain financial advantage. However, Fran who also run a parallel IT company uses this information to gain financial advantage. This is evidence whereby she uses the confidential information as scenarios when conducting her tutor classes which contradicts her obligations. Therefore, based on this evidence the employer may opt to terminate the employment of Fran. Termination of her employment isguided upon by the fact that the breach was of a serious nature. This is it puts the company at risk of losing its clients if they knew that their information was available to the public. However, in terminating the employment of Fran it is advisable that the company issues her a notice termination. The notice of termination should clearly state the reason as to which they no longer require the services of Fran (Gibson & Fraser 2013, p.938). Question Five The issue that arises in this case is in relation to termination of the employment contract in particular unfair termination or unfair dismissal. According to section 389 of the Fair Work Act unfair termination refers to a situation where procedure for termination is not adhered to by the employer. A termination of employment is deemed unfair if the termination is harsh, that is the actions of the employee do not necessarily require termination of employment. However, in this case the actions of the employee were of serious nature, hence termination of employment. Termination is also unfair if it is done unreasonably, that is, the employee is not granted fair response to the allegations. The termination cannot be said to be unfair as the company had set out clear policies that are to govern individuals working within the company. Additionally, the company made sure that each of its employees was aware of the policies as they are personally issued with policies. Additionally, Larry’ actions amounted to a serious breach of the company’s conduct, not forgetting that the company interviewed Larry before terminating his employment. Therefore, Larry was accordedan opportunity to defend himself before being sacked. Additionally, Larry was also informed of the reasons behind his termination of his employment. This was illustrated in the case of Bi Io v Hooper (1992) 53 IR 224 in this case the employee was dismissed on suspicion that he had stolen cigarettes from the employer. This was after the employer found him with marked packets. The court held that the actions of the employer amounted to unlawful dismissal. This is because the employee was not accorded the opportunity to defend himself against the allegations.Therefore, had the employee been accorded the chance defending himself then the termination may not have been unlawful (Gibson & Fraser 2013, p.941) Question Six Implied duties are duties that are not necessarily written in any document; nonetheless an employee is bound to adhere to these duties. In this case, the existing implied duty is one that requires employees to obey the commands of their employers. This duty entails that employees adhere and act as they are instructed by their employers. The commands or instructions should be within the scope of employment. This is to mean that an employee is not bound to adhere to the commands of the employer if the instructions refer to an activity that is not coveredby the employment contract. Additionally, the commands uttered by the employer should be reasonable meaning that an employee is capable of seeing the completion of the tasks as per the instructions. Furthermore, this duty implies that the instructions should not amount to an illegal act by the employee if followed. In the case of Ottoman Bank Ltd vChakarian [1930] AC 277,the court upheld the decision of the defendant for failure to adhere to the commands and instructions of the employee. This arose when the defendant was issued with a transfer letter. However, the defendant declined the transfer fearing for his life. The court in its judgement stated that a command or instruction should not expose an employee to any disease or injury. Therefore, in relation to Wilma’s case her action of opting to go home rather than go back to work was in breach of her duty. Additionally, Constance,on the other hand, was also in breach of her duty to disclose relevant information to the employer. This duty requires that all employees should disclose all relevant information to their employer. Constance was obligated to inform the employer the whereabouts of Wilma upon request by her employer (Gibson & Fraser 2013, p. 937) Question Seven One of the legal issues that arise in this case is in relation to termination of employment. This raises two critical issues that relate to termination of employment. The first issue is termination of employment without notice. Common law states that employers may terminate the employment of their employees without notice. However, employer should take caution when terminating employee without notice as it could amount to unlawful termination. This is evident in the case of Rankin v Marine Power International Pty Ltd [2001] VSC 150,where the plaintiff’s employment was terminated by the defendant without proper notice. The Victorian Supreme Court in its ruling awarded the plaintiff damages and set out rules that should govern termination of employment without notice. These rules are: the employee should demonstrate the existence of disobedience, negligence or incompetency on the part of the employee. Secondly the employer should demonstrate that the breach by the employee was of a serious nature. Lastly, the employer should show to the court conduct of the employee was inconsistent with the existing relationship between the employer and the employee. Therefore, it is by looking at these factors that one comes into conclusion that termination of Flex’s employment did not warrant termination of employment without notice. This is because the termination does not meet the grounds set in Rankin’s Case (Gibson & Fraser 2013, p. 937). The second issue that arises in this scenario is unlawful termination or unlawful dismissal of an employee. Unlawful termination refers to termination of employment contract without adherence to proper channels of termination. Additionally, unfair dismissal arises where employees are deprived the right to defend themselves against the accusations levelled against them. Grounds for unlawful termination are clearly illustrated in section 382 of Fair Work Act (2009). Therefore, if termination is based on any of these grounds then such actions amount to unlawful termination. This is evident in the case of Bi Io v Hooper (1992) 53 IR 224 in this case the employee was dismissed on suspicion that he had stolen cigarettes from the employer.This was after the employer found him with marked packets. The court held that the actions of the employer amounted to unlawful dismissal. This is because the employee was not accorded the opportunity to defend himself against the allegations (Gibson & Fraser 2013, p. 941) Question One Insurance is described as a contract entered into by two parties the insurer and the insured, whereby the insured is required to pay some considerations (premiums) to be compensated by the insurer upon attachment of risks on the property being insured. Disclosure of information helps the insurer determine whether there exists an insurable interest. This refers to something that is of financial interest and could be lost or destroyed if not insured. Therefore, by disclosing all the relevant information it becomes possible for the insurers to determine whether the said property is capable of being insured. Additionally, failure to disclose relevant information may vitiate the insurance contract (Gibson & Fraser 2013, p. 282) Disclosure of information mainly reflects on the material facts which are known to the insured at the time of entering into the contract of insurance. However, it should also be noted that failure to disclose information may at times not vitiate the insurance contract. This is so when the insured comes to learn of new information regarding the material being insured after entering an insurance cover. This is because it is deemed that the insured on his part disclosed any information that was deemedimportant when entering into the contract. Therefore, any new information does not vitiate the existing insurance contract (Gibson & Fraser 2013, p. 287) Question Four One of the main duties of any given director is to exercise discretion when conducting operations of the company. This is to mean that the director should be cautious when making a decision regarding the company. In doing so, the director ensures that the decision reached by the company is a long term. Therefore, the company will be able to benefit from the decisions made by its directors in the future. Additionally, directors should avoid conflicting interests. Conflict of interest arises where a director’s private life affects the manner in which the director makes decision. Additionally, where the director engages in activities that are competing with the company’s activities, then such activities amount to conflict of interest. This is because both the company and the director’s activities target the same market opportunities. Therefore, this would make it quite difficult for such a director to act in the best interest of the company. Additionally, individuals are also required to perform their activities in good faith. This is to say that individuals who are tasked with this responsibility should work for the best interest of the company (Gibson & Fraser 2013, p. 711). References Gibson, A & Fraser, 2013, Business Law, Pearson, New Jersey. Read More