COML2007-Employment Law
Question 1
Unfair dismissal laws are disadvantageous to small business. To what extent do you agree or disagree with this statement?
Question 2
Firstflight was a company manufacturing state of the art aircraft parts for aircraft construction. The company had a workforce of 2300 personnel in companies dispersed throughout New South Wales, Victoria and South Australia. The company had a policy of reducing the union density of its workforce. In keeping with this it had undermined all union initiatives to increase its membership in the company and had steadfastly refused to promote to a staff position any worker who was a union member.
A certified collective enterprise agreement existed between the company and the United Aircraft Parts Society (the UAPS). Two months prior to the end of this agreement, the employees presented a log of claims through their union representative. The claims included a demand that at least 70% of Firstflights’ workforce be union members and that all the existing membership be employed permanently or on a minimum three year contract and that they be given a 20% pay rise. Firstflights’ representatives were not willing to negotiate the union membership issue but met to discuss the pay rise but would offer only a 5% rise. After some time and several meetings, negotiations broke down. Union members in South Australia and Victoria immediately went on strike and set up picket lines outside the premises of Firstflight’s main suppliers. Several local aircraft manufacturers complained to Firstflight that their aircraft mechanical engineers and repairers were unable to obtain essential parts from the picketed companies. South Australian and Victorian members of the chamber of commerce joined in the complaints. The membership in New South Wales took no interest but had threatened strike action if the Australian government did not withdraw all Australian troops from Iraq in response to the hostage-taking of one of the union’s members. When it heard that the membership in South Australia and Victoria had gone on strike it joined in.
1.Discuss the legal status of the industrial action taken by the UAPS throughout Australia.
Question 3
Elizabeth worked as a seller of car cleaning products, Magic Shine (MS). She worked three days a week and was given an area to cover and a number of customers appropriate for an employee working five days a week. She asked for a more realistic workload or an assistant. She addressed her complaints over a six-month period to a number of company executives, but her workload remained unchanged.
After lifting some boxes of files, Elizabeth began to feel very unwell and decided that she could no longer accept such a heavy workload. Tired, troubled by aches and pains and unable to sleep, she sought medical advice. Her doctor diagnosed a number of stress-related complaints and referred her to a specialist and a psychiatrist. The psychiatrist diagnosed major depressive illness.
After six months on sick leave she resigned from her employment with MS and took a job as a market researcher with Pets R US. Two weeks after starting she was absent for a day on sick leave, but in fact attended a baby shower of a work colleague. Elizabeth maintained that she experienced chronic headaches and back pain during that day, which would have prevented her from working in any event. Her manager issued a “first and last” warning to her about this incident, but Elizabeth claimed she never received it.
Ten months later she was absent on sick leave again for two consecutive days. Just prior to the absence she had unsuccessfully sought to take one of the days off as “time off in lieu”. However, she claimed to have had back pain that led her to take that day off. She also said she had made an appointment to see a doctor the following day. The doctor provided Elizabeth with a medical certificate with respect to the second of the two days.
After returning to work, she was summoned to a meeting with her manager. At that meeting she was not totally frank about her absence on the first of the two days and added that her doctor had authorised her to take off extra time which was not covered by the certificate. At a later meeting with the manager Elizabeth said she had lied because the manager was becoming quite aggressive. Nevertheless, at this later meeting the manager told Elizabeth that her conduct amounted to gross misconduct and that she had been given a prior warning about a very similar matter. On that basis, Elizabeth was summarily dismissed.
Elizabeth has commenced proceedings under the Fair Work Act 2009 (Cth) claiming that her dismissal was unfair. She has also made a claim for her psychiatric illness.
1.Do you think Elizabeth has been unfairly dismissed from her employment with Pets R US)? (15 marks)
2.Was Magic Shine in breach of a statutory duty of care to Elizabeth? (2.5 marks)
3.Can Elizabeth claim compensation for her depressive illness? (2.5 marks)
