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Question:

Discuss about the case study of BSL202 Workplace Law.
 
 

Answer:

Introduction:

In the present assignment, it needs to be seen if Mary has a remedy available to her under any Commonwealth legislation, other than the Fair Work Act against the conduct of the male staff, his immediate supervisor Andrew or the company. This issue arises due to the fact that the male coworkers of Mary had given her a birthday card, which had a nude woman serving drinks to men. Mary was deeply offended, as she had faced such tasteless remarks about the large breasts in the past also. As a result, she brings it to the notice of her immediate supervisor Andrew and shows him the card. However, instead of taking any action, Andrew claims that her coworkers didn't mean to offend. And he also stated that if she cannot get along with our coworkers, there is not much future for Mary at the company. The next day, she learns that the company has refused her application for promotion.

Therefore, it appears that in the present case, the provisions of Sex Discrimination Act, 1984 (Cth) may apply. According to this legislation, it has been credited by the law to (i) discriminate against a person due to sex, pregnancy or marital status; (ii) to sexually harass the person; or (iii) to dismiss the person from the job underground of his or her family responsibilities. In such a case, the law provides that the person can make a complaint to the Human Rights and Equal Opportunity Commission in case the person has to face such treatment that may be considered as unlawful under this legislation. When such a complaint has been made, it is referred to the president of the Commission for inquiry and also efforts are made for conciliation. Another function of the Commission is to conduct the research and education regarding sex discrimination and similarly the commission also examines various applicable laws in order to ensure that these legislations are consistent with the provisions of the Act.

Sex discrimination: the meaning of sex discrimination can be described as being treated unfairly on account of the sex or marital status or due to the fact that the person is pregnant or potentially pregnant. In the same way, sex discrimination also includes the instances where a person has been dismissed from employment on account of the family responsibilities of such person. Therefore, an example can be given of the situation where the manager of the company sees that all the male employees of the company are going to receive a hike in wages, but the same will not be available to all the female employees. This will be a clear case of 'direct' sex discrimination. However discrimination may also take place where a requirement is present, (for example a rule, procedure, policy or practice) that is similar for every person but when the requirement has an unfair impact on particular groups. An example of such situation can be given where the company announces that an increase in wage will be given to all the employees who have continuously work for the company for 20 years. However, it is likely that in such a case, a large number of woman employees as compared to men, are going to miss out on the chance of having a rise in their wages. A lot of women have to interrupt their jobs for having children and therefore they would not have worked continuously for one company for the last 20 years. This type of unfair treatment can also be described as 'indirect' sex discrimination.

Sexual harassment: it can be described as a type of sex. Therefore, in this context, sexual harassment includes any unwelcome or unwanted sexual behavior due to which the other person feels humiliated or offended and when such creation can be considered as reasonable under the circumstances. It needs to be noted that it is not related with mutual friendship or attraction. Therefore, the next question that may arise in this regard is where unlawful sex discrimination takes place. According to this legislation, it is unlawful to discriminate against any person in several public areas of public life. Some of these areas include employment, education, superannuation and insurance, awards and enterprise bargaining, goods and services, buying or selling land, accommodation and housing and Commonwealth programs and legislation. 

It also needs to be noted that the employer can be held legally responsible for any sexual harassment or sex discrimination that has been replaced by the employees.

Harassment: the provisions related harassment are present in a wide range of legislation, including the provisions mentioned below. According to section 28A, Sex Discrimination Act, sexual harassment has been defined as the situation where a person has made unwelcome requests for sexual favors, unwelcome sexual advance or if the person is involved in any of the unwelcome conduct that is of sexual nature regarding a person. This takes place under the circumstances it is possible that the person who is being so harassed, may become, humiliated, offended or intimidated. In this regard, it needs to be noted that it is possible that such harassment may take place in a subtle at the implicit manner instead of being explicit. Another relevant provision is section 18 of the Racial Discrimination Act, 1975. This provision prohibits any offensive behavior on the basis of racial hatred. Another relevant provision is section 25 of Disability Discrimination Act, 1992. This legislation prohibits harassment that is related with the disability of an employee. Apart from these legislations, each State and territory also has equal opportunity legislation that also deals with the instances of sexual harassment that may take place at work.

 

Hence, in view of the legal provisions mentioned above, it becomes clear that sex discrimination has been limited by the law and a right is available to the employee to take action. The employee can also deal with the situation by pointing out that whatever is happening is unlawful. If it is not possible, the employee also has the option of making a complaint to the Human Rights and Equal Opportunity Commission. In such a case the person has to write to the commission explaining the incident, when and where it happened, who was involved and everything else that is relevant. The law provides that the aggrieved person should write to the Commission within 12 months of the alleged incidents of discrimination. Similarly, such a complaint can be made by the person who was directly affected by the discrimination, anyone that is present in the group of people who are going to be impacted by discrimination, on behalf of the group or by a trade union on behalf of the members of the union.

There are three stages that the complaint made by a person can go through. It also needs to be noted that the process related with the complaint is confidential, private and free. Similarly, the complainant may also decide against continuity with the complaint at any time. Similarly there is no need for having legal representation. The law also prohibits the victimization of the person due to the reason that the person has made a complaint to the Commission. 

In the present case, Mary had been working part time as a topless barmaid. However, she had to face a lot of tasteless remarks regarding her large breasts from her male coworkers. The male staff at Crunch Ltd gave Mary a birthday card in which a nude woman was serving drinks to men. Mary was deeply offended and made a complaint to immediate supervisor Andrew. However, Andrew said that he was not going to ask the male workers to apologize and to train them inappropriate workplace behavior. He said that the men did not mean to offend. The next day, Mary learns that her application for promotion has been refused. In view of the legal provisions mentioned above, it is clear that this amounts to discrimination and sexual harassment. The fact of refusing promotion to Mary and the tasteless remarks made by her male coworkers are clear breach of law.

In the present case, the efforts made by many to resolve the issue by pointing out that the behavior of the male colleagues as well as the behavior of the company in refusing promotion to Mary was unlawful, had failed. Under these circumstances, Mary can make a complaint to the Human Rights and Equal Opportunity Commission. In this complaint, Mary is required to describe all the incidents, including the unsavory remarks made by her male coworkers, the tasteless card given by her coworkers on her birthday, which carried a picture of nude woman serving liquor to men, and also the fact that Crunch refused to give promotion to Mary the very next day when she made a complaint to her immediate supervisor Andrew regarding the behavior of her coworkers. All these incidents amount to discrimination and sexual harassment.

The incidents of sexual harassment and discrimination have taken place in the office and during office hours. On the other hand, if the incident would have taken place after office hours at a nearby hotel, the employer, Crunch Ltd. may not be held liable for these incidents of sexual harassment.

In the present case, if the incident of sexual harassment would have taken place in a nearby hotel and after office hours, the conclusion will be different. Under these circumstances, Crunch Ltd cannot be held liable for the sexual harassment and discrimination that has been suffered by Mary by her male coworkers. In such a case, if the incident without taking place in a nearby hotel and after office hours and if it cannot be stated in the case that the incident had taken place in the course of employment, Crunch Ltd. cannot be held responsible for sexual harassment faced by Mary.

 

Bibliography

Chappell, Louise, ‘Winding Back Australian Women’s Rights: Conventions, Contradictions and Conflicts’ (2002) 37(3) Australian Journal of Political Science 475–88.

Maddox, Marion, God Under Howard: The Rise of the Religious Right in Australian Politics, Allen & Unwin, Sydney, 2005.

Pateman, Carole, The Disorder of Woman: Democracy, Feminism and Political Theory, Polity Press, Cambridge, UK, 1989

Rivers, Julian, ‘Law, Religion and Gender Equality’ (2007) 9 Ecclesiastical Law Journal 33

Sawer, Marian with Radford, Gail, Making Women Count: A History of the Women’s Electoral Lobby in Australia, UNSW Press, Sydney, 2008

Sawer, Marian, Sisters in Suits: Women and Public Policy in Australia, Allen & Unwin, Sydney, 1990.

Thornton, Margaret, ‘Auditing the Sex Discrimination Act’ in Marius Smith (ed.), Human Rights 2004: The Year in Review, Castan Centre for Human Rights Law, Monash University, Melbourne, 2005.

Thornton, Margaret, The Liberal Promise: Anti-Discrimination Legislation in Australia, Oxford University Press, Melbourne, 1990

Wasserstrom, Richard A., ‘On Racism and Sexism’ in Richard A. Wasserstrom (ed.), Today’s Moral Problems, Third edition, Macmillan, New York, 1985

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