Workplace Law Assignment Evaluating Corporate Law Scenarios

Question

Task: Prepare a workplace law assignment addressing the following questions:
Question 1

Lorraine has just graduated from a Bachelor or Arts majoring in Art History. She has a specialisation in 15th century Italian artwork. It has been quite tricky for Lorraine to find gainful employment in her area. Graduate positions that specialise in 15th century Italian artwork are few and far-between. Given this, Lorraine is very excited to see an advertisement on Art-WORK.com, a popular website for art-related job advertisements. The advertisement is for an entry-level position working as an assistant to John Bochetto, the director of art at Little Florence Art Gallery. The advertisement says the following:

Amazing opportunity to work with one of the most esteemed Italian art experts. As assistant to the director of art, John Bochetto, you will have the opportunity to travel, study and develop your career. Training will be provided and you will work side-by-side with specialists in the area and will work directly with the Faccini collection in the coming months. Apply now!”
Lorraine applies and is very happy to receive an interview. At the interview she meets with a representative from HR, Rhey and a junior art advisor, Billings. In the interview both Rhey and Billings explain what the job will be like. Billings says that all new employees are given training to work at the gallery and are funded a trip to Florence in order to further develop their specialisations. Rhey tells Lorraine that she will love working with John Bochetto because he is very dedicated to his protégés and ensures that they are immersed in the artwork and the environment. Billings agrees with this.
Without reservation Lorraine takes the job and signs a very simple employment contract that states hours of work, remuneration and entitlement to vacations etc. She starts work the next day.
She is surprised but pleased to find that one of her fellow graduates, Henry, is starting on the same day as her and in the same position. They went to university together and worked as partners on multiple occasions. The first big event of the day is meeting John Bochetto. While John is polite but aloof to Lorraine, John is quite friendly to Henry. Within the first two hours of the day, Lorraine is shown to a desk and given a mountain of paperwork to tackle. Henry, on the other hand, spends the entire day with John inspecting various pieces of art. This pattern continues for six months. Lorraine finds she is given administrative duties only and Henry has been given four opportunities to attend gallery shows with John, has been given training on how to discuss various artwork with clients and has been promised a study trip to Florence within the next three months. Further to this Lorraine receives an email from HR stating that because she has less experience than Henry, she will need to take a refresher course within the next six months. Lorraine is aghast. She was told there would be study opportunities in this position, but going back to study what she already knows is not what she had in mind and her and Henry had the exact same qualifications coming into the position. Further she has not been allowed in the same room as the Faccini collection due to its preciousness and fragility.

Lorraine decides to approach Rhey from HR and John to discuss these issues. Rhey is very quiet, but John explains why this is happening. He says that he has a firm belief that 15th century Italian artwork is very inappropriate for young females due to the high level of nudity in the artwork. Because of this, he does not see fit that she is given the same position as Henry in terms of direct contact and discussion of artwork. Further he explains in regard to the Faccini collection that only art associates aged over 50 years of age are allowed to work with the original pieces as they are the only ones that have enough experience.

Lorraine is very upset. After reading the advertisement and attending the interview, she thought she had a pretty good idea of what the position would be like. Lorraine comes to you for advice on the following:
a) Whether Lorraine is able to rely on what was advertised by Little Florence Art Gallery and what was said in the interview - consider this under both common law and statute.
b) Whether Lorraine is able to bring a discrimination claim against either John, Little Florence Art Gallery or both.

Question 2
Trey is a senior art executive at Little Florence Art Gallery. He has worked at the gallery for 15 years and started as a junior intern and slowly made his way to being a senior art executive in charge of the department of 14th century Italian art. He has been a senior executive for the last 6 years. He has recently found out that the gallery has decided to restructure. The restructure proposes to amalgamate the departments of the 10th to 15th centuries of Italian art into one department. The director of the department will be John Bochetto and John will also be the only senior executive in the department. All the other executives will become art associates. For Trey this would mean a downgrade in his position. An associate is generally for someone who has work between 5-10 years at a gallery, while Trey has worked 15. Further the pay is lower and the hours are longer. The work is also different. Rather than liaising and communicating with ‘big’ clients, Trey will now be dealing with public gallery viewings and general inquiries. Trey will also now have to answer to John as his supervisor in the gallery, when they have been in equal positions for the last five years. The gallery has offered Trey this new position under the restructure, and given all the considerations Trey has decided not to accept the position. As a result of this, Little Florence Art Gallery has fired Trey.

Trey comes to you for advice. Advise Trey.

Answer

Workplace Law AssignmentQuestion 1
a. Issue
Lorraine has applied for the entry level position at Little Florence Art Gallery and was promised to provide training and a funded trip to Florence to further develop skills in specializations. Advertisement that was published by the art gallery was the only source of information that enabled Lorraine to decide whether to join work or not. Therefore, Lorraine has to rely on the published information as it is the only source that can deliver information about the respective position of an organisation. On the other hand, the contract that has been signed with her does not state the position of her job and it only reflects the remuneration package, hours of work and number of vacation that she is entitled to. Recruiters for the position, Rhey and Billing, had described the job role verbally to her, which helped Lorraine to make the decision to join the art gallery as an assistant.

Rule
Introduction of employment contract law in Australia has allowed both the employee and employer to form legal contracts with each other and it is based on the workplace duties that an employee needs to fulfil in their job role (Fairwork.gov.au, 2021). Workplace agreement is the statement that reciprocates the rights and responsibility of the employee and employer on which they both agreed. In this case, Lorraine has relied on the verbal contract that has been displayed at the time of her selection. Billing and Rhey has describe the job role to Loraine and also point out the future career opportunity that will help in improve her skill and talent. On the other hand, under the Fair Work Act, 2009, employers are responsible for tailoring the workplace conditions as per the agreement as per the National Employment Standards. Therefore, Little Florence art gallery needed to specify their advertisement and mention their preference of quality so that Lorraine could make an informed decision whether to join the post or not.

Application
Employees and employers of organisations are responsible for elaborate discussion of their duties and skills that are required for performing the job, in this case, Lorraine was uninformed about the preference of Little Florence Gallery. After her selection, she came to know that her degree in 15th century art was not appropriate for the job role and her colleague Henry fit the job role more effectively than Lorraine. However, the approach taken by the Art gallery was wrongful as they did not clarify their requirement thoroughly in their advertisement. In McDonald v State of South Australia [2008] SASC 134, it has been seen that Mr. McDonald, who has been appointed by DECS (Department of Education and Children's Services), has accused his employer of not providing him a secure workplace and often causing harassment and bullying (Whoswholegal.com, 2008). The Supreme Court awarded the employee with $392,850 and delivered a verdict against the employer for breaching the contract as he failed to provide safe workplace that also destroy the relationship of mutual trust and confidence. In this case, the employer, Little Florence Art gallery, has also breached their contract with Lorraine as they do not engage her with the duty that has been promised to her. On the other hand, TullettPrebon (Australia) Pty Limited v Simon Purcell [2008] NSW SC852,has been seen that a fixed term contract has been signed between two parties that has prohibited Mr. Pursell joined another firm, but he breached the contract and joined another firm within the tenure of the contract. The court has ruled in favour of the employer as the employee was responsible for breaching the contract.

Conclusion
In the end, it can be concluded that the advertisement that has been published on the website was only a source of information and the employer did not clearly state the preferred requirement in their advertisement that created false impressions for the candidate who wants to join a workforce that can enrich her career. In the interview session also, Billing and Rhey did not clarify their intention and in the contract, they do not include information about the position of the job. Therefore, Lorraine can take action against them due to the breaching of verbal contract and delivering the misinformation to her.

b. Issue
Lorraine and Henry both are hired for the same position in the art gallery but they have received unequal treatment from the management of the art gallery organisation. Upon questioning the unequal treatment, Lorraine had come to know that her qualification in 15th century Italian art was not considered as an appropriate qualification and she was less experienced in comparison to Henry. On the other hand, Henry was provided with opportunities to attend gallery exhibitions with John and also trained by attending the study trip to Florence which was promised to her at the time of the job interview. Lorraine was only confined to paperwork and forced to take a refresher course to become eligible for the post that she already interviewed for. Despite having the same level of experience and qualification, Henry was preferred over Lorraine and John was also thought that the 15th century was not appropriate for young females.

Rule
Application of Sex discrimination act 1984 and Equal opportunity act 1984 has provide opportunity to the citizens of Australia to maintain equality between all gender and prohibit the unfair treatment on the basis of their gender identity (Legislation.gov.au, 2021). In this case, it has been seen that Henry was more favoured due to his privilege of being male and Lorraine was ignored as she was female. Director of the art gallery, John also thought that 15th century Italian art not was not appropriate for young females therefore, he preferred Henry over Lorraine. Involvement of Sex discrimination Act, 1984, can help in taking the direct or indirect action under discrimination law and allow employees to lodge complain in the commission against such type of behaviour.

Application
Promoting or conducting any act that can show any biases towards any gender is not accepted in the working community of Australia. For instance,Green v State of Queensland, Brooker and Keating [2017] QCAT 008, it has been seen that $70,000 compensation has been awarded to Mr. Green as he suffered from mental trauma that has been played on by two other colleagues of his. The Tribunal had delivered a verdict by considering the prank as sexual harassment and take reasonable steps to stop further damage to employees. On the other hand, Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126 (Hughes v Hill),has seen that Ms Hill has been harassed by her employer Mr. Hugh. the court has delivered a verdict in favour of Ms. Hill and Mr. Hugh was liable to pay $1200 to Ms. Hill for general damage (Mondaq.com, 2020). Therefore, Lorraine is also capable of bringing a discrimination claim as John was discriminating between her and Henry on the basis of gender.

Conclusion
From the analysis, it can be concluded that Lorraine is able to bring a discriminatory claim against Mr. John, director of the gallery as he differentiates between Henry and Lorraine on gender bias. His preference for Henry over Lorraine was completely based on gender as they both are equally capable and hold equal amounts of experience in art.

Workplace Law AssignmentQuestion 2
Issue
Trey is an experienced and skilful employee in the Little Florence art gallery and he has been serving the industry for almost 15 years. He has gradually secured his position in the executive that has increased his salary and power of the position. However, due to the sudden announcement of restructuring the gallery, it has degraded the position of Trey and also lowered his position. This degradation has increased the working hours of Trey and lowered his remuneration rate. As he was not agreed to join the new position in the gallery, the management has fired him from the gallery.

Rule
Under the Fair Work Act, 2009, organisations are responsible for inclusion of fair and productive policies that will encourage employees to actively engage with the organisational activity. It is also important for organisations to set the minimum wage and act as an independent authority to resolve any dispute. Application of Fair Work Act, 2009 also prohibits the unfair dismissal of employees and forbid management to unfair treatment of employees (Fwc.gov.au, 2021). Under this Fair Work Act policy, employees have the legal right to tailor the workplace conditions as per the agreement of National Employee Standards.

Application
It has been seen in previous cases in which the Australian justice system has taken serious action against any kind of discrimination and unfair treatment. For instance, Anderson v Thiess Pty Ltd [2014] FWC 6568, Anderson was dismissed from his position due to sending offensive email that has attacked Muslim faith of the employee in Thiess Ltd (Peopleculture.com.au, 2015). The act was against the Fair work policy of the organisation and has the capacity to potentially damage the reputation of the organisation. However, despite that, The FWC (Fair Work Commission) found that the dismissal was harsh and unreasonable as Anderson is 65 years old and he will face difficulty in acquiring a new job, therefore, his dismissal was cancelled but compensation rate has been deducted by 50%. Contrary to the case of Trey’s dismissal, Trey is payable less in favourable of John in spite of working in the same art gallery at the similar cause which is rather injustice according to the Fair Act Work policy. The law further obligates the executive director John Bochetto not to reduce the remuneration of Trey and he should takeover the provision of equal pay for the similar nature of job. On the other hand, the Wage Code should also be applied by the Italian art gallery in order to consider the Equal Pay Act 1970 to highlight the skills and experience of Trey while working for a period of 15 years. Trey can consider the Equal pay law in front of John to showcase his legal right of regaining the position in the organisation as serving after a long period than John.

Conclusion
Hence, it can be concluded that dismissal of Trey was also not fair as he worked for the gallery for more than 17 years. He became one of the executives on the basis of his capability, therefore legal action could be taken by Trey to regain his position in the organisation.

Reference list
Fairwork.gov.au, (2021), Employment contracts, Retrieved on: 20.10.21, from: https://www.fairwork.gov.au/employment-conditions/contracts
Fwc.gov.au, (2021), Fair work commission, Retrieved on: 20.10.21, from: https://www.fwc.gov.au/disputes-at-work/how-the-commission-works/video-tour-of-the-commission/what-is-the-fair-work-commission Legislation.gov.au, (2021), Sex Discrimination Act 1984,Retrieved on: 20.10.21, from: https://www.legislation.gov.au/Details/C2014C00002
Mondaq.com, (2020), Australia: Claiming to be a modern-day Mr Darcy was no defence to sexual harassment,Workplace law assignmentRetrieved on: 20.10.21, from: https://www.mondaq.com/australia/discrimination-disability-sexual-harassment/976326/claiming-to-be-a-modern-day-mr-darcy-was-no-defence-to-sexual-harassment Peopleculture.com.au, (2015), That’s Not Fair! A Review of Recent High Profile Unfair Dismissal Cases, Retrieved on: 20.10.21, from: https://www.peopleculture.com.au/thats-not-fair-a-review-of-recent-high-profile-unfair-dismissal-cases/ Whoswholegal.com, (2008), Employment Law in Australia: Recent Cases, Retrieved on: 20.10.21, from: https://whoswholegal.com/features/employment-law-in-australia-recent-cases1