Industrial law

Question 1 (20 Marks)In Attorney-General for NSW v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 248 Dixon J referred to the ‘fluctuating changes over the centuries in the extent to which the terms and conditions of the employment are left to free contract”. Critically discuss this quote with reference to the current industrial relations system in Australia. To what extent do the parties to an employment contract enjoy complete freedom of contract? 3 Question 2 (Parts A and B) (30 marks) Students must answer BOTH Parts A and B You are a lawyer specialising in employment law. You are presented with the following two sets of instructions: (A) Peter is employed as a sous-chef at a popular Indian restaurant chain in Sydney, NSW called ‘Second to Naan’ The business is owned and operated by Second to Naan Pty Ltd which employs over 30 staff. Peter has worked at ‘Second to Naan’ for 5 years. He has always been considered very good at his job and is well-liked by other staff members. Two months ago Peter returned to work after a week-long absence. He provided his manager, Bruce with a medical certificate explaining that his absence was due to an anxiety related condition. Peter subsequently requested further time off work due to his being unfit to work as a result of anxiety. Upon Peter returning to work on the second occasion, Bruce requested Peter to attend a medical examination with a local doctor. The doctor deemed that Peter was fit for work but was experiencing higher than normal levels of anxiety and stress. On the basis of the findings of the doctor, Bruce determined that Peter could not sustain his level of performance if he were to continue his usual duties. As a result, Bruce gave Peter three options to choose between before the close of business that day: • perform a server role with a greatly reduced salary; or • move to the position of Assistant Manager with a significant increase in workload (no change in salary); or ??resign. Bruce contends that these options were presented to Peter ‘solely by a desire to protect [his] health and welfare’. Peter complained to the directors of the company that he felt bullied and believed he was being forced into resigning from his position, which was placing him under intense stress. On account of his stress and anxiety, Peter sought an extra month of leave by way of a medical certificate citing his unfitness for work due to an anxiety condition. Peter returned to work last week after the month off. However, on the day of his return to work he was informed by Bruce that his position had been made redundant, due to a restructure of the business. He was also informed that he was not considered a suitable candidate for the new position. Advise Peter as to his rights. What possible action(s) can he take? [Note: Question 2(B) is set out on the following pages] 4 (B) Claire also works at ‘Second to Naan’ as an employed supervisor, She has held this position for over 2 years. Claire is considered very good at her job and is well-liked by other staff members. Second to Naan Pty Ltd, the company which owns and operates ‘Second to Naan’, employs over 30 staff. Six months ago the company introduced a ‘Social Media Policy’ to complement its existing Employee Code of Conduct. The policy applies to social networking and interactions in an online environment, where a participant is associated with ‘Second to Naan’ and is currently a staff member of ‘Second to Naan’. The policy does not apply to the personal use of social media where there is no consequence to ‘Second to Naan’. The policy also provides at clause (3) that: “Inflammatory, racist, sexist and/or offensive comments; confidential material or content that infringes copyright must not be posted or otherwise used. ‘Second to Naan’ staff members posting to social media sites will be responsible in their capacity as a staff member (or as appropriate) for the content they publish and the comments they make.” Staff members were required to attend training on this policy, which Claire did. Last Thursday was Claire’s night off. At 10pm she was at home and decided to start scrolling through her Facebook page. She noticed a post in her newsfeed by Martin Newberry, a popular Meninist blogger. Claire disagreed with Martin’s views and decided to send him a private message via the Facebook messenger app. The message she sent reads in part, “No one cares what you think you ****ing piece of ****.” Claire is aware that Martin often takes screenshots and shares messages people have sent him on his Facebook page. On Friday morning Martin shared a screenshot of his interaction with Claire with his 100,000 followers and tagged ‘Second to Naan’ in the post. Claire had listed herself as a Supervisor at ‘Second to Naan’ in the Work section of her personal Facebook profile. Following the post the ‘Second to Naan’ Facebook page was inundated with posts calling for Claire to be fired and saying they would not eat there if this is how their staff behave. The review section for the Facebook page went from an average of 4.5 stars to 2 stars during this time. On Friday afternoon Claire received a phone call from the manager, Bruce, at ‘Second to Naan’ who informed her that she had been dismissed for gross misconduct and her services were no longer required. He directed her not to report for work that night. Advise Claire.