IRHR3035 – Managing Diversity
Legal Case Study
Sam Garnham – 3129691
Due Date: March 28 @ 11:59pm
Tutorial: Monday 2 – 3pm
Due to the nature of Mel’s dismissal, she should file for unfair dismissal to the Fair Work Commission, Australia’s national workplace relations tribunal. Mel will claim constructive dismissal, with unfair dismissal the dismissal-based claim. For cases in New South Wales, which is where the situation occurred Mel can refer to the Anti-Discrimination Act of NSW, however, the federal Sex Discrimination Act also encompasses relevant legislation, and this Act should be Mel’s primary focus. In order to make an unfair dismissal remedy application an employee must be covered by the national unfair dismissal laws and be eligible to make an application. As Mel was employed by a private enterprise in New South Wales, she is eligible to file an application. Mel needs to have lodged her application within 14 days of the dismissal coming into effect. She must also prepare any relevant information for future reference and claims. It would be wise for Mel to seek some sort legal representation, to ensure the application is appropriately filled out. “The key steps involved in the unfair dismissal application process are: 1. Employee lodges application.
2. The application is checked to ensure it is complete and valid. 3. Employer is notified of the application.
4. The Commission conciliates the application to try to have the parties resolve it amongst themselves. 5. An unresolved application is determined by the Commission following a conference or hearing.” (Fair Work Commission, 2013) Part 2
Has Mel been unfairly dismissed under the Sex Discriminations Act (1984) or the Anti-Discrimination Act (1997), as a result of her pregnancy.
Relevant legislation in determining unfair dismissal can be found under sections 5 (s5) and 7 (s7) of the Sex Discrimination Act (1984) and under section 24 (s24) of the Anti-Discrimination Act (1997) Under s5 of the Sex Discrimination Act, it is stated that:
(1) A person discriminates against another person on the ground of the sex of the aggrieved person if, by reason of: (a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person; As the issue in the case revolves around sexual discrimination on the basis of pregnancy, s7 of the Sex Discriminations Act provides more specific legislation as it is concerned with discrimination on the ground of pregnancy or potential pregnancy. This section of the Act states that: (1) A person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman's pregnancy or potential pregnancy if, because of: (a) the aggrieved woman's pregnancy or potential pregnancy; or (b) a characteristic that appertains generally to women who are pregnant or potentially pregnant; or (c) a characteristic that is generally imputed to women who are pregnant or potentially pregnant; The discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant. (2) For the purposes of this Act, a person discriminates against a woman on the ground of the aggrieved woman's pregnancy or potential pregnancy if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are pregnant or potentially pregnant. Under both s5 and s7 of the Sex Discrimination Act (1984), Mel must prove that she has...
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