LAW GIVEN SCENARIO

Aug 2, 2017 | 0 comments

Aug 2, 2017 | Miscellaneous | 0 comments

LAW GIVEN SCENARIO

 

SCENARIO 1

Campbell decides to sack 14 full time workers from the Health Department without severance pay.  They see you and want to take action.

In the light of this scenario, it is vital to conduct a thorough investigation as to why Campbell dismissed the 14 workers. Whether the sacked workers were made redundant as a result of operational changes must be determine in accordance with the provisions of the Fair Work Act 2009 (Cth) (Creighton & Forsyth 2012). The FWA 2009 provisions provide criterions where employee or employees can be sacked without severance pay. In order to deny the workers entitlements to severance pay, the sacking or dismissal must have been a result of their gross misconduct, or must have breached or terminated their employment contract (Creighton & Forsyth 2012). However, if termination of employment was made by the Health Department, it could either amount to unfair dismissal or redundancy. Under the FWA, if sacking of 14 workers constitutes unfair dismissal, then they can take action against their employer to seek either reinstatement or compensation, whatever is suitable.

The facts revealed that the workers were fulltime and it is assumed that they might have been employed at least for the minimum period required under Fair Work Australia or relevant industrial awards to make a claim for unfair or constructive dismissal or redundancy. Based on the information, my initial approach to resolve this case would be to implement the process of mediation. Mediation is voluntary, impartial and confidential (Moore 2014,). It is generally free and can be arrange quickly. An independent person can point the way to agreement with flexible possibilities. Improvements in communication and understanding are made, as well as mutual agreement. However, Moore (2014) asserted that mediation has no formal process and may not conclude in agreement. It lacks the routine and legitimate protections guaranteed by litigation, with no legal precedent being set. If the processes of mediation fail to deliver fair outcome, the next step for the parties would be to participate in negotiation. The benefits of negotiation is that its time and cost effective. Negotiation can take place with or without assistance from a third party who would be impartial (Astor & Chinkin 1992). Through this process of resolution, the 14 sacked workers, Health Department must agree to participate, and will have control over the process and outcome. Many commercial disputes are resolved by negotiation by parties’ involved3. Over all the result of the negotiation will depend on the workers and their recent employer (Astor & Chinkin 1992). 

 

SCENARIO 2

Brands Pty Ltd designs innovative marketing strategies and Brand concepts for their clients.  One of their designers leaves the firm taking some digital data for several of their clients.  In order to successfully recover the material Brands Pty Ltd need extremely complicated technical evidence from IT experts in the area.  They want to know how to go about resolving the dispute with their former employee.

 

In this scenario, it is not easy to establish whether the digital data taken was the property of the departed employee before employment or it was a property created in the course of employment. Either way, the first step in resolving dispute is that on the general position, intellectual property if created by the departed worker while under his/her employers then the property should be owned by the Brands Pty Ltd. However, there are express statutory provisions such as section 39 of the Patents Act 1977 (Brett 1977) as well as 11 (2) of the Copyright, Designs, and Patents Act (CDPA) 1988 (Handig 2010), which makes the employee to have the ownership of the property in dispute thus calling for amicable dispute resolution with their former employer.

Having established this, both parties will be obliged to ascertain whether the content or the property was created before or after the employment and beginning with the institution, blueprint of the property, exchange of emails, and or engagement of the former employee will have to be ascertained as evidence that indeed the former employee is not entitled to the property and it is for this reason that I will opt for Independent Expert Appraisal and Determination. To contextualise this dispute, engagement of an Independent Expert Appraisal and Determination (IEAD) office should be involved owing to the fact that both parties might have legal rights to the ownership of the said digital data (Bryce 2008). The advantage with this is that it gives both parties the true owner of intellectual property thus a good start for negotiating remunerations. Another advantage is that provided that the expert acts within the confines of the law and that there are terms of contract that existed between the parties (pursuant to which he was appointed as the expert), then the parties are bound by his judgement (Astor & Chinkin 1992). The disadvantage with option is that either party may be unwilling to be enjoined in the Expert Appraisal and Determination process that is, it depends on whether both parties are willing to abide by the terms as will be set by the expert.

Owing to the sensitivity of the matter, Commercial Arbitration is another approach. One advantage of this option is that the case is sensitive and private and especially with regard to clients who trust the Company with their marketing strategies therefore it should be protected rather than taking the case to court (Astor & Chinkin 1992). However, one challenge with Commercial Arbitration as pointed out by Astor & Chinkin (1992) is that with the departed employee, he may not be willing to pay services of the arbitration nor unsure whether solution will be found here because apparently he has nothing to lose owing to the fact that he has gone with everything he needs. 

 

LIST OF REFERENCES

Astor, H., & Chinkin, C. M 1992, Dispute resolution in Australia. Lexis Nexis Butterworths, Australia, 76–96.

Brett, H. (1977). The Patents Act 1977: an introductory guide. Uppingham [England], ESC Pub.

Bryce, J. (2008) Bridging the Expert Appraisal and Determination divide: Executive summary. London: Orange and Cyberspace Research Unit.

Creighton, W. B., & Forsyth, A 2012, Rediscovering collective bargaining: Australia’s Fair Work Act in international perspective. New York, NY, Routledge.

Handig, C 2010, Is the term “work” of the CDPA [Copyright, Designs and Patents Act] 1988 in line with the European directives? European Intellectual Property Review. 32, 53-57.

Moore, C 2014, The Mediation Process Practical Strategies for Resolving Conflict. Hoboken, Wiley. Accessed from http://public.eblib.com/choice/publicfullrecord.aspx?p=1666519.