Why Unfair Dismissal Action over other actions

EMPLOYMENT AND INDUSTRIAL LAW:
Maximum words: 2000

Paul’s Pots Pty Ltd (PP) is a company operating at five locations in South East Queensland. It imports ceramic and decorative pots from China and sells them in both retail and wholesale settings. PP employs 30 permanent staff and up to 10 casual, temporary and part time workers according to requirements. All staff members are employed under awards. The CEO is Julian. Trevor has been employed as a full time permanent Store Manager, at a wage of $1,300 per week, for three years. For two years before that, he was employed at PP as a Storeman.
Eight months ago, after a long courtship, Trevor became engaged to be married to Julian’s daughter, Sheila. However he recently broke off the relationship. A few days after the engagement was ended, Julian ‘phoned Trevor asking him to come by his office for a chat. Trevor attended Julian’s office and Julian began with:
“So, mate, what have you been about? Your mind is not on the job. I’ve had complaints from the workers.”
“What do you mean?” Trevor replied. “All’s well. I haven’t had any problems.”
“There have been complaints, mate, complaints”, said Julian who was clearly very irate. “You had better clear things up and get back on track, if you know what I mean.”
“Has this got anything to do with Sheila, Julian?” Trevor asked.
“Of course not, mate. I don’t know what you mean but you know what I mean!” Screamed Julian.
Trevor left the office shaken and bemused.
A few days later Julian phoned Trevor and asked him to come into the office again. Trevor said:
“I’d like to bring Lyndon in with me – he knows what’s happening on the floor.”
“Don’t be ridiculous, mate!” said Julian “Get yourself in here immediately!!”
Trevor went immediately to Julian’s office whereupon Julian demanded his resignation saying:
“You’re cactus, mate. You’re performance is appalling. Either you resign now or I sack you!”
Trevor refused.
Julian said, “If you don’t resign immediately, I’ll make your life a living hell.”
Julian added that if he didn’t resign effective immediately Trevor was directed to work one shift per week in each of the five locations from the Gold Coast to Noosa. Trevor, feeling overwhelmed and cornered, wrote out a letter of resignation and handed it to Julian.
Trevor left the business with two weeks pay in lieu of notice and his unpaid entitlements. One week after Trevor left PP, Julian wrote a letter to him entitled “Confirmation of Resignation”. In this letter, Julian wrote, inter alia, “…your resignation has been accepted due to your many years of poor work performance.”
Julian called his staff together on the day of Trevor’s resignation and explained that Trevor had been made redundant. He added that Trevor’s position will soon be advertised and all staff would be welcome to apply.
Trevor decided to take action against PP and to that end he asked Lyndon, a storeman at PP, for a witness statement, which was to be forwarded to the Fair Work Commission (FWC). Lyndon had only worked at PP for four months. When Julian learned from the FWC that Lyndon was assisting them. Julian called Lyndon into his office and said, “Loyalty is important to me Lyndon. You’ve picked sides. You want to work in with the FWC and Trevor on this matter, then you’re sacked. Get out now.” Lyndon was summarily dismissed.
In the weeks since he left, Trevor has made no attempt to gain alternative employment and he wishes to include an application for a stress related condition in his application to the FWC.
Do Trevor and Lyndon have effective causes of action against PP under the Fair Work Act 2009 (Cth)?
Trevor v Paul’s Pots Pty Ltd (20 Marks)
Introduction 1
Why Unfair Dismissal Action over other actions ?
Application 2
Does Part 3-2 apply to Trevor and Paul’s Pots Pty Ltd?
Is the applicant a “National Systems Employee”?
Is the applicant an employee of a respondent “National Systems Employer”?
Unfair Dismissal 2
Is the applicant qualified to bring an Unfair Dismissal Application?
Has the Minimum Employment Period been completed?
Dismissed 4
Has the applicant been dismissed?
Was the applicant Genuinely Redundant?
Criteria 7
Was the applicant unfairly dismissed?
Was the Dismissal Consistent with the Statutory Criteria?
Was there a Valid Reason for the Dismissal?
Was the applicant correctly notified?
Did the Applicant have the opportunity to respond?
Was a support Person Unreasonably Refused?
Was the Applicant Appropriately Warned about unsatisfactory Work Performance?
Is the Respondent’s Size & HRM relevant?
Are any other factors Relevant?
Remedies 3
What Remedies are available to the Applicant?
Have correct procedures been adopted?
Conclusion 1
What is the likely outcome?
Lyndon v Paul’s Pots Pty Ltd (10marks)
Introduction 1
Why General Protection Action over other actions?
Application 1
Does Part 3-1 apply to Lyndon and Paul’s Pots Pty Ltd?
Workplace Rights 3
What protection is involved here?
Does it involve a Workplace Right?
Procedure 2
Is the action by PP adverse?
Is there a causal connection between the dismissal and the prohibition?
Who has the onus of proof?
Jurisdiction 1
How is the dispute dealt with vis-à-vis FWC and Court?
Remedies 1
What Remedies are available to the Applicant?
Conclusion 1
What is the likely outcome?

Marking Criteria Marks allocated
Demonstration of knowledge of the law, as evidenced by accurate statement of relevant legal principles.
13
Demonstration of understanding of the law, as evidenced by cogent and coherent application of legal principles to the fact situation as stated.
13
Demonstration of requisite academic communication skills, as evidenced by logical structure of arguments, appropriateness of conclusions, accuracy of citations (legal referencing) and academic referencing and use of accurate and appropriate expression.
4
TOTAL MARKS 30

You are expected to comply with the instructions detailed below.

INSTRUCTIONS

For this assignment you are required to complete the problem questions above. Your answer should be word-processed using one and a half or double line spacing. Pages should be numbered consecutively.

General Writing Guidelines
It is most important to answer the question that is asked. Your argument should be succinct, precise and logically developed. Generally the content (or coverage of the topic) is assessed according to three assessment criteria. These are:
• Demonstration of knowledge of the law, as evidenced by accurate statement of relevant legal principles.
• Demonstration of understanding of the law, as evidenced by cogent and coherent-application of legal principles to the fact situations as stated and/or discussion of relevant principles in applied contexts.
• Demonstration of requisite academic communication skills, as evidenced by logical structure of arguments, appropriateness of conclusions, inclusion of authorities and legislative and/or academic references, and use of accurate and appropriate expression.

Answers should be in prose. A new paragraph should be used for each new idea. Long and complex sentences and paragraphs should be avoided. Link paragraphs logically with preceding paragraphs.

The following guidelines reflect the requirements of formal academic writing generally, and those more specifically relevant to this course and assignment.

• Executive summaries should not be included.
• Headings may be used. These should reflect the issues evident in the problem question (and not facts/ issues/ law/ application of law or the like, which reflect the process of analysis).
• Avoid abbreviations – eg use ‘has not’ instead of ‘hasn’t’.
• Avoid informal language- eg use ‘Therefore..’ instead of ‘So..’ or ‘Well..’.
• Avoid use of emotive language – eg use ‘I argue.., “I would argue..’, ‘I assert.., or ‘I contend..’ NOT ‘I believe..’, ‘I feel..’ or even ‘I think..’.
• Be mindful your analysis should provide logical argument not personal responses that are emotional or value-laden.
• Avoid use of ‘slang’ or poor grammar generally (eg use ‘should have’ instead of ‘should of’).
• Check and re-check spelling and grammar; use the spell and grammar checks available.
• Care should be taken in the use of quotations. Generally a quotation should only be used when the author conveys his or her own very specific idea which you are referencing, or when the author conveys an idea in a manner which is convincing and that you can not adequately paraphrase. Inappropriate and/ or over use of quotations will detract from your answer and influence your mark.
Referencing
Referencing texts, articles and reports
• Employ the usual requirements of the Harvard referencing style. Use case authorities and legislation as primary references rather than referring to texts or reports.
Referencing case examples
• If referring to case authorities include the case name and year in the text of your work and the name, year and full reference (citation) in the reference list at the end. For example Smith v Jones (1951) in the body of your work; and Smith v Jones 83 CLR 376 in the reference list. Use italics for the case name.
• When referring to case authorities use the case citation as the primary reference rather than a secondary reference (text or report) unless the primary reference is not given in the material you are using.
Referencing legislation
• When referring to legislation include the full reference when you introduce the legislation in the body of your work, the same again in the reference list and an abbreviation for subsequent references in the body of your work. For example the Fair Work Act 2009 (Cth) in the body of your work, the Fair Work Act 1984 (Cth) in the reference list and FWA in subsequent references in the body of your work.
• Refer to sections of legislation as relevant in your response. These must be included for accurate referencing as appropriate.
• If referring to a section at the beginning of a sentence write ‘Section x….’; if referring to a section mid-sentence write ‘s. x…’.
Generally
• References to cases must not contain spelling errors.
• Avoid referencing lectures.
• Priority should be given to referencing legislation and cases as primary sources.

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