This document discusses the issue of discrimination against Meghan in the workplace and the relevant laws under the Anti-Discrimination Act 1991. It explores the rules, application, and procedures for filing a complaint. The document also includes a short response section on the Human Rights Act 2019 (Qld).
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Running head: BUSINESS LAW Business Law Name of the Student Name of the University Author Note
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1BUSINESS LAW Hypothetical ILAC Question Issue The issue arising from the instant scenario is whether there exists any cause of action against CBLAI pertaining to Meghan in relation to the given situation under the Anti- Discrimination Act 1991. Whether there is any prescribed procedure that needs to be followed if Meghan resolves to proceed with the matter. Rule Allegretta v Phoenix Hotel (1991) - any less favourable when extended to an employee owing to her pregnancy will be treated to be discriminatory and the employer extending such discrimination will be held liable. Application The workers are extended protection against any discriminatory conduct that has been initiated to them within the furtherance of their employment by their employer by virtue of the Anti-Discrimination Act 1991. Under section 6, the Act renders any discriminatory treatment or any hindrance to extend equal opportunity for discriminatory purposes given towards the workers to be unlawful. This section puts a restriction upon the employers to subject any of their workers to discrimination based on the grounds mentioned under present Act. This section also extends a right towards the worker so discriminated to make a complaint against such a discrimination. It also provides for the procedures and the agencies that are required to be pursued by the worker in case a discriminatory treatment has been extended towards him. There has been a mention of sixteen grounds that has been provided in the Act by virtue of section 7, based on which are person can be made to face discrimination and such an act of discriminationwillbeconstruedtobeunlawfulunderthisAct.Thesegroundsof discrimination that has been provided under this Act are family responsibility, connection with a particular person, gender identity, relation with trade union, sexuality, impairment, beliefsinrelationtoreligion,politicalviewpoint,breastfeeding,race,parentalstatus, pregnancy, relationship status, sex and age. Any discriminatory treatment that has been initiated depending upon these grounds will be treated as unlawful. This Act prohibits any treatment that has been given to an employee, which can be construed to be discriminatory in any of its form, direct or indirect with respect to any of the attributes of features provided and renders it actionable by virtue of section 8. Section 9 has mentioned both direct and indirect discrimination to be unlawful and actionable. The definition of direct discrimination has been provided under section 10 of the Act. When a person has been extended with any conduct by the employer which has made the employee feel less favourable compared to others for the reason of his attachment to a particular class or attribute,itistobeconstruedasdirectdiscrimination.Thedefinitionof indirect discrimination has been provided under section 11 of the Act. An act can be treated to be indirect discrimination when the employer has imposed certain policy, which seems to be affecting a particular person or a particular class of persons more than the others and in a detrimental manner. Section15rendersanyformofdiscriminationwithrespecttodifferentworking conditions, refusal to avail promotion, benefits, transfer or training that has been given to a worker within the scope or in furtherance of his employment to be restricted under this Act. It also restricts an employer from indulging into activities that will amount to discriminatory or will be treated to be less favourable from the viewpoint of discrimination.
2BUSINESS LAW Firstly, the employee so discriminated will be required to initiate a communication with the employer or any other person from whom the discrimination has been extended to the employee. In case such a communication has failed to avail any result, the employee will be required to approach the higher authorities of the employer. Next to that, the employee may initiateacomplainttoAustralianHumanRightsCommissionorAnti-Discrimination Commission Queensland. These commissions will strive to arrive at a settlement by way of a process of conciliation. In case the process of conciliation has failed to avail remedy, the employee may seek resort for a formal hearing in the Queensland Civil and Administrative Tribunal (QCAT) or the Queensland Industrial Relations Commission (QIRC). In the case of Allegretta v Phoenix Hotel (1991), it has been held by the court that any less favourable when extended to an employee owing to her pregnancy will be treated to be discriminatory and the employer extending such discrimination will be held liable. In the given case, Meghan has been working in the ‘Corrupt Banking Loans Australia Incorporated’ (CBLAI) as a highly trained mortgage broker. Ten months ago she has been interviewing for a promotion for the post of senior broker. She has been asked several question during the interview. In this furtherance of the interview, it has came up that Meghan is pregnant. In this context, the HR Kate has mentioned the topic of her pregnancy to be irrelevant with respect to the job role she has been interviewing for. The HR insisted Meghan to provide details regarding her qualifications and experience, which are more relevant to the interview. However, it has been overheard by Meghan that Charles on of the senior executives and Williams has been commenting about her pregnancy and has laughing about the same. This has been disappointing to Meghan, when she got to know that she has not be given the promotion she has been interviewing for and the same has been given to some other person. That person has the same qualification and experience as that of her. However, it has been contended by the employer that the job has been given to the other person for his better performance in the interview compared to the performance of Meghan. This act can be construed to be discriminatory and the and the employer can be held liable under section of the Act for denying promotion to Meghan for her being pregnant. Again, Meghan has been onmaternity leave for a short period just after this incident. After she has returned from her maternity leave, she has been placed in a position, which is inferior to the previous job position she has been working. However, the position to which she has been demoted to, earns the same remuneration that she used to earn in her previous job role. However, the new position that she has been given has made her very upset and she seemed to have difficulty in adapting to the new inferior job role. Moreover, on her lodging a complaint against the same to the HR, she has been assured that the decision of this change of job role has been decided to ensure the best interest of the company and to provide her with the opportunity to balance between her work and motherhood. But on the application for a part time job role, she has been denied the same for. This can be construed to be a discriminatory treatment extended towards Meghan owing to her pregnancy. The same can be illustrated with the case of Allegretta v Phoenix Hotel (1991). In this case, Meghan has attempted to communicate the matter with the employer and has not been addressed properly by them. In such a situation, Meghan can initiate a complaint to Australian Human Rights Commission or Anti-Discrimination Commission Queensland. These commissions will strive to arrive at a settlement by way of a process of conciliation. In case the process of conciliation has failed to avail remedy, Meghan may seek resort for a
3BUSINESS LAW formalhearingintheQueenslandCivilandAdministrativeTribunal(QCAT)orthe Queensland Industrial Relations Commission (QIRC). Conclusion On thebalanceof probabilities,the QueenslandCiviland AdministrativeTribunal (QCAT)would find thatthere exists a cause of action against CBLAI pertaining to Meghan in relation to the given situation under the Anti-Discrimination Act 1991. The above mentioned procedure needs to be followed if Meghan resolves to proceed with the matter.
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4BUSINESS LAW Short Response Question Answer 1 a) The Queensland Parliament has passed the Human Rights Act 2019 (Qld) on the 27thday of February of the year 2019. b) The Human Rights Act 2019 (Qld) will be applicable from the 1stday of January of the year 2020 and it is not possible presently to make complaint under the same. Answer 2 a) Under section 11 of the Human Rights Act 2019 (Qld) contains provisions stating that individuals possess human rights. b) It is not possible for a company to have human rights. Answer 3 a) The definition of human rights has been provided under section 7 of Human Rights Act 2019 (Qld). b) Section 58 of the Human Rights Act 2019 (Qld) makes it unlawful for a public entity to act or make a decision in a way that is not compatible with human rights. Answer 4 a) The two causes of action presented by the applicant in the case were injury of non- financial nature caused by virtue of sexual harassment and discrimination of unlawful nature. b) The Department of Education and Training and the school groundsman were held liable for the unlawful acts. Answer 5 a) The reasonable steps that the employer could have taken to avoid vicarious liability are: 1.Proper training given to the employees with respect to discrimination. 2.Imposing of stringent anti-discrimination policies to prevent discrimination. b) The principle for awarding compensation from the Federal Court case of Richardson v Oracle Corporation Australia Pty Ltd [2014] was followed in Green’s case.