Law Of Employment Reference Cases And Other Legal Authorities - Sufficient To Cite The Case In Brackets - Law Assignment Help

Assignment Task -

QUESTION 1

Cath has been working as a waitress at Papa Dino’s Family Restaurant in Hawthorne for the last two years. She is studying for her degree in business and only takes shifts on Wednesday evenings and during the weekend. Dino, the owner of the restaurant, usually contacts her on the Monday and offers her up to six four-hour shifts for the week. She usually takes up all the offered shifts, but declines when she has many assessments due. She takes up more shifts during the university recesses and can easily work up to 40 hours at those times. Cath has no leave allocation. She simply declines shifts when she needs time off. Dino gave Cath a Fair Work Information Statement when she first started working for the restaurant. 

Dino, his wife and adult son all work for the restaurant on a full-time basis. Additionally, ten other people work in the restaurant, mostly as waiters that are rostered in shifts. Dino’s adult son, who mostly works as a waiter and receptionist, earns $25 an hour. The shift workers, including Cath, earn $31.25 an hour. 

Papa Dino’s Family Restaurant has been struggling financially and Dino takes the difficult decision to let some of the staff go. He reduces the number of workers for the shifts to five and informs Cath that he is not able to give her any more shifts, but that he will give her a glowing reference. 

Cath is livid. She says she was a part-time employee and that Dino owes her at least notice of termination or even redundancy pay. Consider whether Cath can institute an action against Papa Dino’s Family Restaurant for unfair dismissal in terms of the Fair Work Act 2009 (Cth), and if so, what her chances of success are. You may assume for the purposes of your answer that no award or enterprise agreement applies to Cath.

Question 2 

Forte BHP Ltd (‘Forte BHP’) is a large international company, mainly engaged in extractive industries, including large scale mining operations in Australia. It employs more than 20,000 workers in Australia. The Australian Mining and Extractive Industry Workers Union (AMEIWU) is registered to represent a majority of Forte BHP’s mine workers. 

The Forte BHP Ltd Mining Workers Enterprise Agreement 2017 (EA) applies to all its mine workers in Australia. The EA has a nominal expiry date of 20 November 2020. 

In October 2020, AMEIWU invites Forte BHP to start negotiating for a new enterprise agreement. Amongst other matters, AMEIWU proposes a clause providing that Forte BHP will not explore new mining cites located in areas of cultural significance to indigenous communities. AMEIWU has included the same clause in all proposed EAs in which they have been involved since June 2020. 

Forte BHP refuses to bargain with AMEIWU. 

You are a consultant working in human resource management. AMEIWU approaches you for advice on 1 November 2020. They want their members to wear t-shirts to work that prominently display the Aboriginal flag on the front and ‘AMEIWU’ on the back. They are of the opinion that this would not be ‘industrial action’, but add that their members will refuse to attend work if they are not allowed to wear the t-shirts. 

1. Advise them on whether the wearing of the t-shirts would constitute industrial action, and if so, whether they would be able to embark on protected industrial action with regards to the contentious clause. 

2. Suppose that AMEIWU ignores your advice and gives Forte BHP notice that its members would start wearing the t-shirts or stay away from work in 48 hours. What actions can Forte BHP take against AMEIWU to stop them from proceeding?

Question 3 

Rajesh is the Chief Operations Officer at Global Aviation Ltd. Before he joined the company, he has had a very successful career at several other international aviation companies. Rajesh earns $450,000 a year, excluding bonusses and other entitlements. This income is guaranteed by Global Aviation Ltd in the contract of employment. This contract also provides that normal working hours are 38 hours a week ‘and such overtime as is reasonably required from time to time from someone with similar responsibilities as the employee’. 

Rajesh was not born in Australia, but immigrated to Australia in 2008 and has been a citizen since 2013. He speaks English with a strong accent and wears a turban at all times to cover his hair, as is the custom for Sikh men. 

Since starting at the company, Rajesh has struggled to fit in. The rest of the executive management of the company saw Rajesh as an outsider and a threat to their way of doing 

things. These feelings of distrust have recently turned into outward hostility and Rajesh is now daily subjected to personal insults and arguments. He finds that he is often not included in important decisions, even when the decisions have a direct impact on his area of oversight. Rajesh was invited to make presentations to the board of directors of the company at a recent board meeting, during which one of the directors asked Rajesh if he was a Muslim. Rajesh replied that he is Sikh and he wanted to know why the director asked this question. The director replied: ‘No, I just wondered.’ 

The board of directors of Global Aviation Ltd realise that they will have to pay Rajesh a lot of money if they terminated his contract by notice. They decide it would be better if they made life unbearable so that he would resign. They sabotage some of his key projects, remove his key personnel without his consent and make him work up to 70 hours a week. 

Rajesh finally resigns. Advise Rajesh whether he can take legal action against Global Aviation Ltd for what he considers to be a dismissal.

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