In addition, it's illegal for an employer to dismiss an employee for her pregnancy (Pregnant worker: legal protection 2012).
Mr Todaro didn’t fire Ms Lei, but she decided to quit the job when she was two months pregnant because of the bad attitude of the manager towards her.
In the article, there are also few aspects related to corporation law. “Corporation laws concern the creation, organisation and administration of the companies” (Lambiris 2011, 10). Both VST and VCR were Ltd that means companies with Limited liability.
The in a is liable just for the value of his share (Business Structures in Australia 2010).
Mr Todaro had created a new company called “VCR Pty Ltd” and he transferred the ownership of Venezia to the new firm .In this way the old company VST wasn't able to pay the $78.000 imposed by the WA Industrial Magistrate’s Court WA.
The Corporation law concerns also the duties of the corporate's directors. A director cannot act in order to render the company insolvent, otherwise he may be civilly liable (Corporate Governance and Directors’ Duties in Australia 2012).
Probably for this reason, the Fair Work Ombudsman is trying to hold the manager personally responsible for the backpay of his two employees.
- The law has various functions. It
- allows people to organize and plan
Laws give directions about how people must behave in every aspects of daily life. For example, laws determine agreements between people in the workplace. Moreover, laws allow people to employee the staff, lease permits, get loans, purchase equipment. In the case, Mr.Ng and Ms Lei promised to work in the Venezia restaurant offering their skills and time, while the corporation, in person of Mr. Todaro, promised to pay those people.
- encourages or discourages particular activities
Laws define rules and principles that people in a community have to follow. These rules aim at achieving good and fair outcomes for the community as a whole. As laws punish or encourage some activities, people’s behavior is affected by them. In the case, laws discourage the corporates and their directors to act in unfair way and to exploit the vulnerable workers punishing them with fines and, in some case regarding health matter and safety, with also criminal prosecution.
- creates rights and duties that can be enforced
People must be aware of their own rights and responsibilities. Generally, people carry the responsibilities of following and respecting what is stated in the contract that they made with other individuals or organisations. For example, in the case, the workers have the rights to be paid fairly and to be treated in a non-discriminatory manner.
- provides remedies when rights are interfered with or duties are not discharged
In the case, Mr. Todaro didn't respect Mr Ng and Ms Lei rights as employees. The law provides them the possibility to get compensation imposing the company to pay them $78,000.
- Why it is important to know the law in these circumstances?
Individuals are inclined to hold knowledge on their respective law systems of law-breach and consequences.
In this case, it is really important for the employer to know the labour and employment law, in order not to breach, otherwise, resulting in fines and compensation.
On the other hand, all people must be aware about their Human and Civil rights and for the employee it is important to know the labour laws as well in order to be able to claim to the Authority to receive compensation in case of infringement.
PART B
1. The case was decided in the Court of Appeal.
2. The decision of the Court of Appeal will be treated as persuasive by a Western Australian State Supreme Court as the two courts are from different countries and consequently belong to different hierarchy.
3. The judges’ names were Lord Woolf , Ward and Sedley.
4. The appellant’s name is Joanne Elizabeth Clark and the respondent is the University of Lincolnshire and Humberside.
5. The material facts of the case are:
- The university ULH is an higher education corporation with no charter and no provision for a visitor
- EC was a student at ULH from 1992 and 1995.
- After a dispute with the university about the marking 0 of a paper for her final examination, the student appealed to the governors appeal committee and it was decided that 0 was not an appropriate academic response as it is beyond the limits of academic convention. Nevertheless the academic board confirmed the mark.
- The appellant had the possibility to re-make her finals but the university was not allowed to give her a degree classification higher than a Third Class , however the reg 6.5.4 allows students for the possibility of doing better.
- In mid-1998, EC issued proceedings in the Halifax County Court, but Judge Walker, having been shown two similar decisions of the Court, stroke out her claim of breach of contract on the ground it was not justiciable.
- EC appealed against the decision of Judge Walker and the facts were set under judgment of Sedley Lj
- Most contractual disputes of domestic resolution can be adjudicated by courts in the absence of a visitor
- The dispute may be not suitable for adjudication in the courts.
6. The main legal issue is whether the breaches of contract by universities in the absence of a visitor are justiciable by the courts or not.
7. EC’s claim was amended adding two elements: the university failure in complying with the decision of the governors appeal committee and the breach of reg 6.5.4, regarding the possibility to do better. In this way the appeal was allowed.
8. Ratio decidendi:
The contract was made between a fee-paying student and a higher education with no provision of a visitor. Some issues of academic judgment, such as marks, are not suitable for adjudications in the court. However, in case of an institution without visitor, there is a possible distinction between issues capable or not capable of being decided by the court and the parties did intend to be legally enforceable at the moment of the agreement
9. In the decided case judges refer to other 16 cases. The decisions made from other courts have to be considered whenever the facts of the previous cases are similar and relevant to the facts of the new case. In addition, if the facts are similar and the previous decisions are made from a higher seniority court in the same hierarchy, the lower court has to follow the previous decision. It’s said that the precedent is binding. On the other hand, when the previous decisions are made by a court of lower seniority or belonged to another hierarchy (state or territory), but the facts are similar, the previous decisions are called “persuasive” and the court can decide whether follow them or not.
REFERENCE LIST
Business Structures in Australia. 2010. Schweizer Kobras.
Corporate Governance and Directors’ Duties in Australia. 2012. Dibbs Barker Gosling.
Fair Work Ombudsman Hours of work. 2010.Australian government.
Fair Work Ombudsman National Minimum Wage. 2011. Australian government.
Lambiris, Micheal.2011.First Principle of Business Law: Interactive tutorials and Sourcebook. Sidney: CCH Australia.
Mac Donald, Kim. 2012. “Watchdogs chases restaurateur”. The Western Australian, 8 February
Pregnant worker: legal protection. 2012. Net Lawman Ltd.