1. Problem question (30 marks). Answer the following:
Wendy is employed in a timber mill, LARA Pty Ltd. LARA Pty Ltd has a staff of 220 people and a dedicated human resources department that also manages any accidents in the workplace. There is also a Health and Safety Committee.
Her position is a full time timber mill worker. Her annual salary is $64,000 per annum. She has held the position for three years. Her duties are to cut raw logs into timber, flooring, decking and other basic timber products. She likes working at LARA Pty Ltd because they let her start work at 9:15am Monday to Friday. This allows her to drop her three children at school. Her partner picks them up from school and looks after them until she gets home from work in the evening.
When Wendy was inducted to the position, she was taught to operate the variety of saws required for the job. However, she was not taught to undertake any safety checks or procedures. Most of the time, Wendy undertakes tasks without supervision. LARA Pty Ltd services the saws as regularly as is required.
On 14 February 2017, Wendy was using a table saw to cut a part of a raw log into pieces. For some reason there was no guard on the table saw - perhaps the previous person who used it had taken it off. Wendy was in a hurry so didn’t bother about finding it and putting it on. She attempted to hold the part of the raw log which was on the saw table in her left hand while pressing the ‘on’ button, which was located on the right hand side of the table saw, with her right hand. After pressing the ‘on’ button, she quickly put her right hand up onto the part of the raw log to push it through the saw table. This was the quickest way to cut the part of the raw log. However, she overreached and her right middle finger got caught in the blade of the table saw. The table saw cut half of her right middle finger.
There was a lot of blood and Wendy was rushed to hospital. She had a number of operations and was in considerable pain and suffering which she took medication for. She had to take two months off work. She started to feel depressed because of the difference the loss of her finger would make to her life. She was concerned about both the appearance and the functionality of her hand.
On return to work, she could only undertake light duties for two months. LARA Pty Ltd found some administrative duties for her in the front office. After that, she was cleared for normal duties.
At the beginning of May 2017, Wendy wanted to explore new possibilities, hopeful that that would help her out of her depression. An opportunity of Team Leader in her team became available. She applied, but was unsuccessful. She heard a rumour that LARA Pty Ltd wanted someone to attend company meetings with the Managing Director and Board and also meetings with stakeholders and that the person had to be ‘presentable’. Wendy thought it was the loss of her finger that deemed her unpresentable. She asked the Managing Director of LARA Pty Ltd and he said ‘We just have to put our best foot forward in this economic climate and appearances do matter’. Wendy discussed the situation with a colleague who said ‘You had no chance anyway, you are a woman. They need a man in that job because there is a lot of negotiating required with other men’. She again went to ask the Managing Director. He said ‘Women are given equal opportunity in this workplace. It is just the person who can best do the job. And the person has to be able to attend 8:00am meetings on any day they are called’. Wendy observes that all of the team leaders at LARA Pty Ltd are men. Wendy believes she can meet all of the requirements of the position of Team Leader if they deal with each situation fairly.
Advise Wendy on what she was and is entitled to and what action she can take.
2a. Problem question (30 marks). Answer both 2a and 2b:
Chuck was employed as a full time stock broker at Billions Pty Ltd, a South Australian firm, for 15 years. The firm consists of a total of 50 employees and has two dedicated human resources staff. His immediate manager was Axel.
Chuck was employed under an employment contract. It was very basic and didn’t even include a termination clause.
Work had been stressful for the few years prior to Chuck finishing at Billions Pty Ltd due to the State’s bad economy. However, it became especially bad in the year prior to him finishing at Billions Pty Ltd due to the alleged recession. The firm’s numbers had been down and it didn’t seem like they would recover in the near future.
Chuck had lost clientele and had made some risky calls on his buying and selling which led to some financial losses for the firm’s clients. Twice, Axel sat Chuck down and told him that he had to do better. Chuck took this advice on seriously each time and made changes to his methodology. However, in the economic climate, it was hard to improve the figures.
To cope with the stress, Chuck had been drinking large quantities of alcohol with his evening meal. On 2 May 2017, Chuck came to work and was spotted by the human resources manager in the lobby. He wasn’t walking straight and when she approached him, he smelt like alcohol. She told him to go home, take the day off, recover and come back to work the next day. He did that. While he kept drinking alcohol with his evening meal, he didn’t come to work again smelling like alcohol.
On 15 May 2017, Chuck was at his desk. Axel came to his desk and said ‘You’re doing nothing as usual I see. I’m really not sure what we pay you for.’ Chuck showed visible signs of getting angry. Axel said ‘Woah! Lets take this outside’. Chuck and Axel walked out together. When they got outside, Chuck tried to punch Axel. Axel moved out of the way and wasn’t touched. Axel said ‘Chuck, you obviously hate me so much – I think it’s best if you don’t work here anymore.’ Chuck was upset and surprised. He started to walk off the premises. Axel yelled out after him ‘What do you have to say for yourself’. Chuck just kept walking and didn’t return again.
Chuck wants his job back. He filed an application for unfair dismissal with Fair Work Australia. Assume he has done this within the required time and that the amount of his salary allows him to access the jurisdiction. His matter has been set for a conciliation conference.
Chuck has instructed you to represent him at the unfair dismissal conference. Provide in writing, what you would say if you were asked at the conference to present the Chuck’s side of the story. Include a response to what you think Axel and Billions Pty Ltd might argue.
Problem question 2(b):
Using the facts that are not in italics in problem question 2, assume Chuck earns $150,000 and cannot access the unfair dismissal jurisdiction. He is determined to file proceedings following the termination of his employment whether he has a good chance of success or not. What claim can he make for compensation for the termination of his employment and what are the prospects of his success and possible compensation/damages, having regard to the position of Axel and Billions Pty Ltd?
Essay question (40 marks). Answer one of the following:
1. Having regard to predecessor legislation, does the Fair Work Act 2009 (Cth) provide a good balance of rights and entitlements? You can choose one or more parts of the Fair Work Act 2009 (Cth) to analyse.
2. Having regard to Commonwealth Bank of Australia v Barker XXXXXXXXXXALR 356 and other cases, should employment contracts include an implied term of mutual trust and confidence?
3. Having regard to predecessor legislation and other jurisdictions, is Australia’s unfair dismissal system working well? You can choose one or more parts of the unfair dismissal system to analyse.