Dear MD,

As per your request, I am supplying you with some advice regarding the “Cheaper by the Dozen” supermarket case. The advice is based on issues and facts involved with the case.

Issues

Several employment law issues have emerged with regards to this case. Among them is the employer’s liability for injuries sustained by employees in the course of their employment contract. Clair was injured while working, which means that the employer has some responsibilities towards her. This issue is relevant in determining whether Clair is qualified to attain compensation as a result of the injury sustained. The issue of harassment is also prevalent in this case. Aspects of harassment have emerged with the way Dylan and John treat Clair, Rosario and Gwenda. They have become fond of asking sexual questions that are not deemed appropriate at the workplace setting. The male co-workers have also adopted the tendency of rubbing their breasts and squeezing their buttocks with every opportunity that they get. Larry, on the other hand, takes every opportunity to get back at Claire based on her dressing and way of life publicly. There is also the issue of discrimination. This is quite vivid where Rosaria’s application for promotion is halted due to her sexual orientation. The employer does not feel that their religion would auger with her sexual preferences.

Law

Several legal principles can be provided with regards to the above issues. To begin with, the Fair Work Act 2009 (Cth) is applicable in this case. The Act is regarded as a substantial change that has graced the area of workplace anti-discrimination regulation during the last decade. The Fair Work Act precludes discrimination by employers towards employees throughout the employment relationship. The Fair Work Act 2009 (Cth), s 342(1) has outlined 13 attributes that should not be used to discriminate against employees. An employer is not supposed to take adverse action against an employee because of his/her color, sex, race, sexual preference, sex, physical or mental disability, age, marital status, pregnancy, family or career’s responsibilities, political opinion, religion, social origin or national extraction (Sappideen et al., 2016, p.642). The employer would be working in a discriminatory manner if they denied an employee an opportunity in the organization based on these attributes. In Ansett Transport Industries (Operations) Pty Ltd v Wardley (1984) EOC 92-002, the plaintiff was denied an opportunity to work as a commercial pilot due to her status of being a woman. Mrs. Wardley had scored better than other men that were applying for similar positions in the organization. The company refused her employment when she stated that she would want to have children at some point in life since this meant that she would have to take a maternity leave. The court held that a maternity leave was integral to being female, and therefore this decision was based on sex.  This was regarded as an act of sex discrimination.

According to Workers Compensation and Injury Management Act 1981 (WA), employers are liable for injuries sustained by employees while in the course of executing their employment contracts. The injured employee can claim workers compensation or lodge common law claims for damages (Sappideen et al., 2016, p. 252). The employer might also be liable for breach of work safety and health legislation. Worker’s compensation accords limited compensation to employees that suffer injuries in the course of their employment. The employee is not obligated to prove that the employer is at fault or is negligent (Sappideen et al., 2016, p. 252). Compensation recovered with this regard is normally more modest compared to damages that would be recovered through common law liability. Recoverable compensation does not reduce even when the employee was negligent.

The Sex Discrimination Act 1984 (Cth) makes it unlawful for any individual to sexually harass another person in workplace relationships. The Act refers to sexual harassment as unwelcomed conduct that is sexual in nature and could cause the victim feel humiliated, offended or intimidated (Sappideen et al., 2016, p.635). The Sex Discrimination Act 1984 (Cth), s 44-47 classifies sexual comments that include propositions, questioning one’s sexual life, comments about an individual’s body, clothing or appearance. Use of obscene language or sexually suggestive jokes is also regarded as being a form of sexual harassment. Sexual touching that includes squeezing, kissing, hugging and massaging is also a form of sexual harassment (Sappideen et al., 2016, p.636).

Application

The principles above can help in making justifiable conclusions to the relevant issues about this case. To begin with, Claire can claim workers compensation with regards to the injury that she sustained while placing the axes and hammers on the shelves. The employer did not breach the duty of care in this case. This is because the accident did not occur as a result of his/her negligent conduct. However, according to the Workers Compensation and Injury Management Act, Claire does not have to prove that the employers was at fault or negligent in the event that resulted in her injury. Claire engaged in work that was not within her scope, but this form of negligence does not mean that her recoverable compensation will be reduced.

Larry, Dylan and John were liable for sexual harassment against Claire, Rosaria and Gwenda. Larry makes remarks about Claire’s dressing and lipstick application. He asserts that she dresses like a slut something that he has only noticed after termination of their relationship. Dylan and John make lewd comments towards Claire regarding her sexual life. The three gentlemen are also fond of pinching, rubbing and squeezing these ladies’ breasts and buttocks. The Sex Discrimination Act 1984 (Cth) brands it unlawful for any individual to sexually harass another person in workplace relationships. Claire, Rosaria and Gwenda should report these acts of sexual harassment to the employer. The employer should take the relevant steps as outlined in the company’s sexual harassment policy to deal with the action. In case the employer does not take all the reasonable steps to ensure that this issue is resolved, the ladies can approach an external organization such as their union or an anti-discrimination agency and lodge their grievances. When the employer refuses to take reasonable steps upon being informed about the sexual harassment acts, he/she becomes susceptible to vicarious liability.  The Sex Discrimination Act compels employers to be liable for sexual harassment acts conducted by other employees unless they undertake reasonable steps to ensure the problem has been eliminated (Rees, et al., 2014, p. 302).

The supermarket has also breached the Fair Work Act on issues to do with discrimination. This is because they denied Rosaria an application for promotion due to her sexual preference. The director informed her that the supermarket owners were religious people and coming “out of the closet” would not auger well with them. The director should allow Rosaria to apply for the promotion since she is duly qualified. If this is not the case, Rosaria can go ahead and sue the supermarket for damages. This is due to the missed opportunities that would have come with the promotion.

In this case, the ladies can agree their claims to be mediated. The case revolves around issues that can be easily solved through mediation. On some issues, the employer is only held accountable due to vicarious liability. Mediation would ensure that the employer has taken the appropriate steps to remedy the issues. The mediator in this case, ought to be a neutral facilitator.

Conclusion

The supermarket is liable to the breach of the Fair Work Act with regards to discrimination of Rosaria due to her sexual preference. Vicarious liability also applies due to the sexual harassment acts propagated by Larry, Dylan and John. Based on Workers Compensation and Injury Management Act 1981 (WA), the supermarket is also liable to offering Claire’s workers compensation. The best way for the management to approach these issues is to convince the ladies to indulge in a mediation process to help solve the above issues. The mediator involved should be neutral so as to have the best interest of all parties.

Bibliography

Statutes

Fair Work Act 2009 (Cth)

Sex Discrimination Act 1984 (Cth)

Workers Compensation and Injury Management Act 1981 (WA)

Cases

Ansett Transport Industries (Operations) Pty Ltd v Wardley (1984) EOC 92-002

Books

Rees, N., Rice, S., & Allen, D. (2014). Australian anti-discrimination law (2nd ed.). Federation    Press.

Sappideen, C., O’Grady, P., Riley, J., Smith, B. (2016). Macken’s Law of Employment – 8th           Edition. Australia: Thomson Reuters.

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