Henry vs the Victorian Government - Case Study Example

Case Study Name of Student Institution Affiliation CASE STUDY Henry vs. the Victorian Government In this case, Henry was convicted of charges of theft in Fiji while he was abroad. It is evident Henry is a medical specialist, a profession that should be treated with all the morals and virtues dealing with the patients. The Victorian Government did not look into his past criminal history prior to his employment, and this activity was deemed as a preservation of the duty of confidentiality. Due to the fact that Henry works for the Victorian Government, he should be investigated for the claims of theft though they are outside the jurisdiction of the Victorian Government because the alleged atrocities were committed in Fiji. The other investigation reveals that Henry is utilizing the government database to increase his rating in the profession. The investigation results lead to his summary dismissal from a civil servant of the Victorian Government. The most significant legal issue arising from Henry’s case is whether his dismissal was fair. The determination of the fairness of the dismissal can be done on grounds of Australia’s new workplace relations system (Askew, 2011). Ideally, the new system was founded by the Fair Work Act of 2009 and has been in place since the year the 1st of July, 2009. According to the system, the termination of employment refers to the end of employment contract of the employee. Termination of contract can be as a result of dismissal, redundancy, or resignation. There are specific rules and protections, set out by the Commonwealth workplace laws, which concern employment relationship termination (Barbra, Joyce, Marion-Davis, 2009). The main objective of these rules is establishing whether the termination is within the law. They also play the role of establishing the entitlements that could be owed to an employee at the end of employment contract. A dismissal is considered to be unfair if the Fair Work Commission agrees to the occurrence of the following: the employee has been dismissed, the dismissal did not come as a result of genuine redundancy, there was harsh, unreasonable, or unjust. The commission also ought to establish that the dismissal was not in line with the Small Business Fair Dismissal Code in case the employer was a small business. In the determination of whether a dismissal was unjust, the Fair Work Commission ought to take into consideration a number of factors. The commission ought to establish the presence of valid reasons for the dismissal with respect to the conduct or capacity of the employee (Deans, Williams, & Metcalfe, 2013). It also ought to establish the time within which the employee was notified of the dismissal and the chance given to him/her for response. In addition, the commission ought to establish the presence employer’s unreasonable refusal to give the employee a chance to a support party to provide assistance in the dismissal-related discussions. If the dismissal of the employee is related to low performance, the commission ought to establish whether the employer had notified the employee of any issues related to his/her performance. The commission also takes into consideration all other issues it thinks relevant to the dismissal (Deans, Metcalfe & Williams, 2015). First and foremost the Victorian Government cannot charge the medical specialist for the charges on theft. However, they can use this fact to dismiss him from the Government due to the fact that the medical profession needs allot of moral virtues. The fact that the Victorian Government was not interested in his criminal history was not bound to bring up any legal issues (Deans, Metcalfe & Williams, 2013). The discovery of fraud leads to the dismissal on the ground that he was falsefuly trying to get alot of rating by intruding the government databases. This is an act of fraud that can be prosecuted in a court of law. However this is subject to the submission of evidence since not all the allegations might be true. The Victorian Government medical specialists should maintain a high level of the maintenance of law and order and the fact that Henry did not abide to the law would deem him as a rogue medical specialist in the government. According to the Department of employment in Australia, the employer is subject to look into the history of a potential employee pending employment at his own discretion (Fägerskiöld, 2006). However, convictions that are outside the boundaries of the country do not count as atrocities to the government. This conviction can taint the reputation of the medical specialist but they do not necessarily keep him out of employment. Henry is in the public sector which is bound by a number of rules. It is worth noting that, one’s capability of obtaining or retaining employment in the public sector can be affected by a criminal conviction. In the commonwealth nations, when a public service employer comes to the realization that an applicant or an employee has previously been convicted, employment can be denied or the employee can be dismissed. Ideally, upon realizing that a public servant had been convicted of a serious offence, the employer is free to take remedial or disciplinary action. Guidelines of the public sector mandate criminal records check after an individual has been provided with the employment opportunity. Apart from sexual offences, the check can be taken back to 10 years. It is worth noting that, Henry’s conviction in Fiji could deny him a position in the public sector or still lead to his dismissal since they were in the category provided by the law (Gray, 2002). The applicant is also provided, by the guidelines, with a chance to hold discussions on the conviction prior to the final decision regarding the employment. There ought to a consideration of the conviction’s circumstances with the applicant being given a chance to provide character references with an objective of offsetting the record of convictions. At the same time, Henry is working as a private hospital after hours. This can lead to the low performance at the place of work and can affect his consultations with patients. The Victorian government assumes that once a person is employed to serve for the government, he is not bound to work for any other party. This is a violation to the employment act but at the same time does not contribute enough ground for Henry to lose his job because he was working after hours. This can be an option for exploitation for the medical practitioner to sue the government. Despite the fact that the Government does not remunerate the medical specialist well enough, the Government of Victoria gives the medical specialist no room for growth and development thus the option for working in a private firm for medical practitioners (Gore, Newborn & Jarrodm, 2011). Henry's options are limited as pertains to his legal case. Henry can opt to sue them under the duty to confidentiality that was broken towards him by the Victorian Government. Furthermore the auto cities were committed in Fiji and that is overseas. In this case, the legal grounds come into it because Henry deserves his rights of privacy as a medical practitioner. However, Henry broke the law by trying to defraud the database system of the Victorian Government without permission. According to the Fair Work Act 2009, it stipulates that all employees of the Victorian Government are subject to fairness in recruitment unless there is enough proof to deem them unsuitable. The medical specialist is deemed suitable in the case that he passed the interview process with success (Carlson & Nero, 2002). However, the Government recruitment team did not look into the past records of the medical specialist. The Employment Act stipulates that the Victorian Government should have looked into the history of the medical specialist in order to determine his status. However Henry can sue the government under the privacy Act for the dismissal following his conviction in Fiji. This is not enough grounds to fire the medical specialist with a lot of experience (Carlson & Nero, 2002). The right to privacy and work is also violated by the realization that the medical specialist was working with patients refereed to him through the Victorian Government. However, legal grounds are not there to protect Henry for the fraud he committed trying to fake the government database to improve his medical rates. It is worth noting that Henry’s case represents summary dismissals. According to the workplace law of Australia, an employer is allowed to dismiss an employee without notice; this ought to happen in the vent that the employer has reasonable grounds to believe that that the employee in question was guilty (Hart, 2009). Ideally, for this to happen, the employer ought to sound guilty of serious misconduct which in this case is inclusive of serious breaches of occupational safety and health procedures, violence, theft, or fraud (Sapiens, O’Grady& Warburton, 2011). Duty of Confidentiality Common law jurisdictions have a requirement for solicitors to have respect for the confidentiality of the affairs of their clients. Indeed, clients’ information obtained by solicitors may be confidential, may not be subject to use for the benefit of individuals without the authority of the client (Petard &Naught, 2010). In Australia, there are circumstances in which the equitable action for breach of confidence can be made use of to prevent the disclosure of information (Hart, 1991). This has the implication that a court of law has the power of restraining the publication or disclosure of confidential information surreptitiously or improperly obtained. There are documented circumstances under which disclosure of confidential information may be termed lawful. The first circumstance under which the disclosure of confidential information may be termed lawful is when there is consent from the individual to whom the confidential information relates. Such information may also be disclosed in the event that the disclosure is in the interest of the public, and where there is such a legal duty as a court order to disclose the information (Golden & Olivetti, 2013). This has the implication that, unless a situation does not fall within the fore-mentioned circumstances, an individual’s information (regarded confidential may not be disclosed. According to Australian Employment Law, it is the duty of the employer to maintain the privacy of an employee and ensure that the employee does not suffer because of the exposure of the past and private matters (Creighton & Stewart, 2010). For instance in the above case of Henry vs. The Victorian Government, the government was at fault not to keep the privacy of the medical specialist with the realization that the exposure to his private life would adversely affect his work. It seems that the Victorian Government was not keen on the private life but the activities of the medical specialist were not ordering well with the duty of the profession that deals with patients (Greenwood & Gunner, 2008). However, under the law, it is the obligation of the Government to ensure that they keep the matters of Henry as private as they should unless they affect the work he is doing for the Victorian Government. Duty of Confidentiality is the act of maintaining the confidential matters of both parties as private as they can in order to ensure that the act of revelation does not affect the work or the terms of duty at employment (Moore, Nanthagopan, Hammond, Milligan, & Goff, 2014). Most institutions have their own secrets and the employee’s activities at work or the history of the employee may affect the work. In this regard it is the duty of both the parties to maintain a high level of confidentiality when it comes to things that may affect their duties and responsibilities. In common law, it is mandatory for the parties to respect each other's jurisdictions of confidentiality of the client’s affairs (Williams, Helicon, Wildman & Roswell, 2013). In the law, it is the duty of confidentiality is a prerequisite for professional privileged to hold. It is the duty of all lawyers to maintain the jurisdiction of the duty of confidentiality and the human dignity of each party. In the above case, Henry could have been convicted wrongly in Fiji or overseas (Office for National Statistics, 2015). There are instances of tricked admissions or confessions in criminal cases similar to the one that affected the medical practitioner (Price & Buckner, 2006). In this case the Government upheld the professional rules in that it premised the case on the connection with the retainer instead of going out to the source of the information in Fiji. This implies that the duty of confidentiality applies to any information that is acquired upon the client engagement or the barrister that is concerned with any part. However there are some exceptions and limitations to the duty of confidentiality. 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