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Part One- Overview of Case
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Date: May 2016
Parties to the Case: Ms. Kawalski (Applicant) vs. Mr. Bob Walsh (Respondent)
The main source of contention originated from a Facebook message that Ms. Kawalski sent and then forwarded to her friend Kate. Originally intended to be private, this message ended up in the public realm, which caused significant consequences for Mr. Walsh's company.
From her vantage point, Ms. Kawalski voiced her complaints about the company's procedures. She was worried that by changing unnecessary parts in cars, the company appeared to be overcharging its clients. This put her in a precarious moral situation where she felt compelled to mislead clients about the nature of the increased fees. She intended for her Facebook message expressing her dissatisfaction to be a private statement of her concerns.
Mr. Bob Walsh represented the respondent's stance, which focused on the detrimental effects of Ms. Kawalski's activities. He believed that the spread of the aforementioned Facebook message had damaged the reputation of his company. Ms. Kawalski's purportedly harmful deed was compared with Mr. Walsh's portrayal of a sincere concern for the survival of the company and the possible loss of jobs for other employees. The session covered a wide range of topics, including business ethics, the difficulties of protecting privacy in the digital age, and the possible fallout when private complaints become public. The hearing's main topics of discussion were the roles that social media plays in workplace conflicts and the ramifications for both employers and employees.
Part Two - Case Analysis
The Commissioner's function and actions were to supervise the proceedings and make sure that the hearing was held in a manner that was courteous, equitable, and compliant with the law (Page, Colquhoun, and Mcbride 2021). The Commissioner's particular actions were not explained in the information that was provided, but generally speaking, these positions entail directing the hearing's direction, raising relevant issues, and making sure each party has an equal opportunity to state their case.
Advocates' role and conduct: The advocates represented their respective parties in court, explaining their positions, questioning and cross-questioning witnesses, and bringing up relevant laws. Their methodical questioning style and concise explanation of their respective stances suggested that they were acting in a professional manner (Lawsociety.org.uk 2021).
Role and behaviour of the defendant and applicant: Ms. Kawalski, the applicant, voiced her complaints about the company's procedures, stressing her moral and ethical concerns. The defendant, Mr. Walsh, concentrated on the harm that the applicant's acts caused to his company and its standing (Lee and Jin 2019). Arguments made by the parties: Ms. Kawalski contended that she was forced to lie to clients about increased fees because she was in a precarious situation. Mr. Walsh argued that the reputation of his company had been harmed by Ms. Kawalski's Facebook comment.
The involvement and behaviour of the witnesses during the cross-examination and examination phases were crucial in furnishing more details and background information to the arguments. Their actions during the cross-examination and examination played a crucial role in determining how the hearing was portrayed (Ministry of justice 2022). Their answers offered precision, wisdom, and proof to back up the assertions of their respective parties. Relationship between the case and the Fair Work Act 2009 (Cth): Because the case involves grievances linked to the workplace and claims of unfair dismissal, it is covered by the Fair Work Act 2009 (Cth) (Alrc.gov.au 2022).
solution Sought: The information supplied did not specify the precise solution that Ms. Kawalski was requesting. However, payment, reinstatement, or an apology are common remedies in these situations. As per the details of Alrc.gov.au (2022), the Fair Work Act 2009 (Cth), in particular the sections pertaining to unjust dismissal and the redressal methods therein, provides several remedies.
Examination of Concerns Raised:
Substantive fairness: Substantive fairness concerns the reasons for the dismissal in question. In this instance, the question of whether Ms. Kawalski's Facebook remark was a legitimate reason for her termination, especially in light of its possible effect on the company.
Issues with procedural fairness: The way the dismissal was carried out is a key component of procedural justice (Page, Colquhoun, and Mcbride 2021). Were the right protocols followed? Did Ms. Kawalski received enough notice and a chance to present her case?
Perform Analysis Considering Diversity, Culture, and Negotiation Styles:
Each side showed a great sense of conviction in their own views. Their devotion to their stories points to a strong cultural or personal foundation.
While Ms. Kawalski's use of social media to vent her frustrations is a modern form of expression, it also raises concerns about the bounds and propriety of such behaviour in the workplace.
Mr Walsh's defence emphasised reputation and the bottom line, demonstrating a conventional business attitude. The advocates tried to obtain facts, construct stories, and change the Commissioner's viewpoint during their negotiations, alternating between hostile and cooperative attitudes (LeBaron 2023). Ultimately, the case highlighted the nuances and complexity of conflicts at work in the digital age. Within the context of the Fair Work Act 2009 (Cth), it raised important issues regarding professional boundaries, privacy, and the morality of corporate practices.
Part Three - Possible Outcome
Figuring Out the Type of Dismissal:
Upon analysing the arguments presented by both parties during the hearing and referencing the provisions of the Fair Work Act 2009 (Cth), there's a significant chance that the Commissioner might perceive Ms. Kawalski's dismissal was unfair (Australian Law Reform Commission 2019).
Is the firing fair or unfair?
While it's undeniable that Ms. Kawalski's public airing of internal business practices on a platform like Facebook could harm the business reputation, the actual impact remains subjective (Ministry of justice 2022). Did the post hurt the company's image so badly that it could not be fixed that she should be fired? It's important to think about whether what she did deserved such a harsh punishment.
What could happen if the commissioner makes his decision?
Because the Fair Work Act stresses both procedural and substantive fairness, it is possible that the Commissioner will look at both when deciding what to do. While Mr. Walsh has argued the substantial harm Ms. Kawalski caused the business, Ms. Kawalski’s advocates have drawn attention to potential procedural shortcomings in her dismissal process (Fwc.gov.au 2021).
Procedure Fairness: When Mr. Walsh fired Ms. Kawalski, did he follow the law? Was she given a chance to defend or explain what she did before the choice was made? If there were mistakes in this area, the Commissioner might think that the firing was unfair in terms of the process.
Fairness in the substance: This has to do with why the person was fired. While the business did face a potential reputational risk due to Ms. Kawalski's actions, the substantive question is whether her actions were of such grave nature to justify dismissal (Ombudsman 2022). Because she cares about doing business in an honest way, her goals might be seen as coming from concern rather than evil.
Most Likely Solution and Reasoning If the application is upheld:
Reinstatement: One of the most probable remedies could be reinstating Ms. Kawalski to her former position. This would be a direct way to rectify the unfair dismissal, putting her back in the position she was in prior to the dismissal.
Compensation: If reinstatement is not deemed feasible due to potential workplace hostility or other reasons, compensation might be another solution. This would aim to cover her lost wages and any additional distress or inconvenience she faced due to the unfair dismissal (Admin 2022).
Apology: Given the public nature of the grievance (with the Facebook post), a formal apology from the business might also be in order, helping to restore Ms. Kawalski's reputation.
The ultimate determination is expected to depend on the presence of both substantive and procedural fairness. If the Commissioner determines that Ms. Kawalski's acts, although possibly detrimental, did not justify termination and that certain procedural safeguards were not adhered to, she may be considered to have experienced unfair dismissal (Eplex.ilo.org 2022). Therefore, the proposed solution would centre on rectifying this inequity, either by the reinstatement of her post, the provision of compensation, or a combination of both.
Part Four - Reflection
Participating in the hearing regarding an unjust termination was a significant encounter, providing valuable opportunities for learning and self-reflection. Observing the tangible implementation of legal principles, particularly within the realm of workplace relations which is known for its controversial nature, presented a notable contrast to the theoretical understanding I had obtained.
Educational Insights: From an educational standpoint, this experience served to further underscore the complexities of employment law. The observation of how the Fair Work Act 2009 (Cth) was utilised by both parties to strengthen their respective positions proved to be intellectually stimulating (Southey 2020). The courtroom provided a vivid depiction of the ongoing conflict between the rights of employers and the protections afforded to employees. Furthermore, this experience served as a valuable demonstration of the significance of both procedural and substantive fairness, which were previously only familiar to me through academic literature.
Emotional and ethical considerations were evident throughout the hearing, highlighting the profound human dimension of employment issues, in addition to the legal points presented . The visible grief exhibited by Ms. Kawalski served as a poignant reminder of the severe consequences that such occurrences might impose upon an individual's existence. Concurrently, I empathised with the business proprietor who was contending with the possibility of harm to their reputation. This incident served as a poignant reminder that beneath the surface of every court issue lie individuals who possess authentic concerns, anxieties, and emotions.
The role of advocacy was essential in shaping the story. The manner in which they conducted themselves, including their choice of questions and concluding statements, emphasised the significance of competent legal advocacy (Southey 2020). It became evident that the role of an advocate extends beyond mere legal knowledge, encompassing the ability to construct a persuasive story. Observing their actions, I experienced a revitalised admiration for the craft of legal discourse and its fundamental significance within the framework of the judicial system.
The hearing provided insights into the intricate dynamics of culture and diversity within the context of judicial proceedings. The various individuals involved in the proceedings, including the advocates, the applicant, the defendant, and the Commissioner, each contributed their distinct viewpoints, which were partially shaped by their respective histories (Alamyar 2022). This experience served to underscore the significance of cultural competency within the realm of law. The negotiation behaviours displayed, particularly in the cross-examinations, were a lesson in tact, patience, and strategic thinking.
Personal Reflection: At an individual level, this particular experience has prompted me to contemplate my prospective future position as a legal practitioner. The experience served as a poignant reminder of the weighty obligation associated with acting as a representative for another individual, as well as the considerable capacity to significantly influence their life (Croft 2023). It has reaffirmed my commitment to approach law with empathy, diligence, and a keen sense of justice.
This hearing encompassed more than a mere intellectual endeavour, delving into the intricate dynamics of workplace interactions and the corresponding legal procedures. Upon concluding the hearing, I departed with a greater number of inquiries than resolutions, a characteristic indicative of a genuinely enlightening encounter (Croft 2023). It has spurred me to delve deeper, to question more critically, and to strive for a more comprehensive understanding of the law and its human implications.
Conclusion
In addition to being a moving reminder of the personal stories that serve as the basis for legal proceedings, taking part in the unfair dismissal hearing proved to be a valuable opportunity to get insight into the practical application of the Fair Work Act 2009 (Cth). The complexity of labour relations, as this specific case illustrates, highlights the challenges faced by workers seeking justice and employers trying to build a sustainable business. Apart from discussing the legal concerns, the hearing underscored the critical importance of procedural and substantive fairness. It also clarified the significant responsibilities related to legal representation and the complex interaction between behavioural and cultural aspects in negotiation processes.
A thorough grasp of the many facets present in the legal system has been made possible by this specific expertise. This experience has made it clear that practising law requires more than simply a technical understanding of the subject; it also requires empathy, understanding, and a strong commitment to the values of justice. Remember that every legal case contains real people, real stories, and real consequences. This is something that prospective attorneys must always remember.
References
- Admin, P. C. S. 2022. “‘I’ll Be Back’: Reinstatement of Sacked Workers.” People + Culture Strategies. May 18, 2022. https://www.peopleculture.com.au/ill-be-back-reinstatement-of-sacked-workers/.
- Alamyar, Fiona. 2022. “Uber and the Future of Work Formal Rights, Collective Action and Experiences of Work within the Platform Economy.” https://core.ac.uk/download/pdf/212691715.pdf.
- Alrc.gov.au. 2022. “The Fair Work Act 2009 (Cth).” ALRC. 2022. https://www.alrc.gov.au/publication/grey-areas-age-barriers-to-work-in-commonwealth-laws-dp-78/2-recruitment-and-employment-law/the-fair-work-act-2009-cth/#:~:text=The%20Fair%20Work%20Act%202009%20(Cth)%20draws%20a%20distinction%20between.
- Australian Law Reform Commission. 2019. “Overview of the Fair Work Act 2009 (Cth) | ALRC.” ALRC. 2019. https://www.alrc.gov.au/publication/family-violence-and-commonwealth-laws-dp-76/16-employment-the-fair-work-act-2009-cth/overview-of-the-fair-work-act-2009-cth/.
- Croft, Lauren. 2023. “The ‘Inherent Racism’ within the Australian Legal System.” Www.lawyersweekly.com.au. January 23, 2023. https://www.lawyersweekly.com.au/biglaw/36514-the-inherent-racism-within-the-australian-legal-system.
- Eplex.ilo.org. 2022. “ILO-EPLex.” Eplex.ilo.org. 2022. https://eplex.ilo.org/valid-and-prohibited-grounds-for-dismissal/.
- Fwc.gov.au. 2021. “Valid Reason Relating to Capacity or Conduct | Fair Work Commission.” Www.fwc.gov.au. 2021. https://www.fwc.gov.au/valid-reason-relating-capacity-or-conduct.
- Lawsociety.org.uk. 2021. “Advocacy Preparation and Conduct.” Www.lawsociety.org.uk. 2021. https://www.lawsociety.org.uk/topics/advocacy/advocacy-preparation-and-conduct.
- LeBaron, Michelle . 2023. “Culture-Based Negotiation Styles.” Beyond Intractability. July 6, 2023. https://www.beyondintractability.org/essay/culture_negotiation.
- Lee, Jung-Yong, and Chang-Hyun Jin. 2019. “The Role of Ethical Marketing Issues in Consumer-Brand Relationship.” Sustainability 11 (23): 6536. https://doi.org/10.3390/su11236536.
- Ministry of justice. 2022. “Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures.” https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1164429/achieving-best-evidence-criminal-proceedings-2023.pdf.
- Ombudsman. 2022. “What Is Procedural Fairness? - Casebook Examples - Queensland Ombudsman.” Www.ombudsman.qld.gov.au. 2022. https://www.ombudsman.qld.gov.au/improve-public-administration/blog/what-is-procedural-fairness-casebook-examples#:~:text=Procedural%20fairness%20requires%20that%20a.
- Page, Alan, Celina Colquhoun, and Nicholas Mcbride. 2021. “THE INDEPENDENT REVIEW of ADMINISTRATIVE LAW.” https://assets.publishing.service.gov.uk/media/6053383dd3bf7f0454647fc4/IRAL-report.pdf.
- Southey, Kim. 2020. “A Typology of Employee Explanations of Misbehaviour: An Analysis of Unfair Dismissal Cases.” Journal of Industrial Relations 52 (1): 81–102. https://doi.org/10.1177/0022185609353991.
