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– Both activities have resulted in formal warnings from the headmaster!
– Mary pregnant – sorting out leave arrangements!
– Five year contract due to expire!
– “You’re fired you silly cow” – no notice, form of vilification
Step 1: Legal Issues!
What is the legal issue/question here? What is it asking us?
a) Has Mary’s conduct warranted summary dismissal? / Is Mary’s conduct serious misconduct warranting summary dismissal
b) Has Mary been discriminated against on the grounds of pregnancy?
**** Was this also a form of vilification?
– This could be a form of vilification if other people were around when she was dismissed.
Step 2: Applicable Law
– Adarmi V Mason Delux!
– Larsen V RSPCA!
– Fair work Act (most suitable refers to unfair discrimination) SS 340, 351!
– Section 351 – a person must not take adverse action against another – Discrimination!
– Sexual discrimination Act S 7 (not as relevant but may use it to define sexual
discrimination)
Step 3: Application – use both law and cases
– Adarmi V Delux – chose not to work on saturday afternoons because he believed it was not in his contract. Form of disobedience and therefore warrants summary dismissal.!- Mary on the other had, complained that gospel rehearsals were not included in her contract but still attended.
a) According to Adarmi case employee is obligated to follow lawful instructions of the employer – failure to do so justifies summary dismissal. Advise mary that she must work on saturdays.!
-Mary is following the instructions of her employer; this doesn’t justify summary dismissal
b) Pregnancy doesn’t have to be the only reason for dismissal, employer dismissed for other reasons including performance issues. However although pregnancy was a factor, the courts would still consider this a form of discrimination
According to sex discrimination act S 7 “Define discrimination based on pregnancy.”
Additionally Mary did have some performance issues/concerns before she was pregnant, but according to Larsen V RSPCA case pregnancy doesn’t have to be the main reason for dismissal for it to amount to an unlawful termination/adverse action based on pregnancy
c) May also choose to include vilification – Mary may also have a claim for vilification had there been people in the corridor when she was terminated by her employer
Step 4: Conclusion
Her actions don’t warrant summary dismissal in terms of failure to follow instructions because she did follow instructions. She is also being dismissed based on discriminatory grounds.
Claim remedies around fair work act: damages in the form of compensation.
