Part B: Extended response question: Letter to
a lawyer (15 marks)
Scenario
In
September 2011, Debbie commenced employment with Real Endeavours Pty Ltd and
worked as a sales agent in a call centre with a male manager. In March 2012 she
was promoted to the claims department.
In
May 2012, Tom, a colleague who Debbie had sat beside in the call centre, made a
complaint about harassment and intimidation by the call centre manager. Debbie was
asked by Tom to come forward and provide supporting information. Debbie also
lodged a formal complaint against the same call centre manager citing
harassment and inappropriate behaviour.
You
work in the Human Resources Division within Real Endeavours Pty Ltd. You decide that these complaints need to be
investigated. During the course of the investigation a number of staff, including
all of the persons whom Debbie suggested could support her allegations are
interviewed. The emails of several staff are searched for evidence of
harassment. In the search you find that several staff, including Debbie, had
sent emails which attached pornographic photographs. (The company has an
Electronic Use and Information Security policy which stated: “Employees must
not download, retrieve or send sexually explicit, harassing, racist or
otherwise discriminatory or illegal material from the Internet or email at any
time. This sort of behaviour is considered to be a serious misconduct, and may
result in the instant dismissal of the employee(s) involved.”)
Emails
from Debbie to others are also checked during this investigation. One such
email appeared to indicate that she had some form of personal relationship with
Tom; and another was to the Call Centre Manager, which appeared to express
appreciation for his constant flirting.
When
Debbie isquestioned
about her relationship with Tom, she denies that she has any personal
relationship with Tom beyond that of a normal working relationship. Debbie further
states that she had forwarded the pornographic email to her manager (at his
request), and to a female colleague (who had asked why she looked so shocked). Debbie
did not reveal that she had also sent the pornographic email to two members of
her family and a female person who did not work for Real Endeavours Pty Ltd.
You
have come to the conclusion that Debbie’s complaint cannot be substantiated.
One
of the employees you interviewed now brings to your attention a blog that
Debbie recently wrote on a social-networking webpage. The blog can be accessed
by a Google search with the words ‘Debbie’ and ‘harassment’. The following
wording was on a page alongside a photograph of Debbie and her name:
“Friday,
August 3, 2012
I believe that you
should always defend the truth, and find the courage to stand up for what is
right. There is a place that shall remain unnamed that I thought was based on
the same principles.
I have just been thru
an investigation that in the end turned the victim into the perpetrator. The investigation tampered with evidence and
was biased.
This man was sexually
advancing himself on his colleagues. When there were a couple of people that
were courageous enough to come forward their statements were dismissed because
they were deemed as good friends.
Where is the concern
of the Senior Management that is meant to be protecting the workers from
harassment, intimidation, bullying and sexual advances that were unwanted,
uninvited and unsolicited?
At the end of the
investigation, I was told that it was all unsubstantiated. That he has
witnesses and people within the workplace that said I instigated it all. I
wanted it. Not one signed statement on
his behalf. But two signed statements on my behalf, one from the employee who
sat next to me every day for 5 months. He was conveniently sacked the day they
were meant to deliver their results and because he was sacked his statement was
not credible.
What more can I do?
Debbie”
You
write a letter to Debbie requesting her to remove the blog and to cease
publishing it (and any other material that has the real potential to damage the
reputation of the Company) in the public arena.
Debbie replies that she intended it to be only available to ‘friends’
and that the blog was considered the gentlest and safest way to attempt to
bring other aggrieved colleagues forward who have otherwise been too scared
about losing their jobs to come forward. Debbie has not removed it.
You
need to decide what the best course of action for Real Endeavours Pty Ltd to
take, within the law, in dealing with Debbie and then you are to ‘run it past a
lawyer’. Write a letter to a lawyer
practising in a suitable area of law along the following lines:
·
introduce yourself;
·
explain the fact situation (the
legally relevant facts);
·
explain what Real Endeavours Pty Ltd
wants to do and how you think Real Endeavours Pty Ltd is entitled to act,
within the law (i.e., the course of action you have worked out is the best one
for Real Endeavours Pty Ltd); and
·
ask the lawyer for advice about the
legality of your plans and about any other legal concerns you have arising from
these facts.