Subject Code & Title :- IRHR3040 Negotiation And Advocacy
Assessment Type :- Assignment
Words Limit :- 2,000 words (+/- 10%)
Instructions :- This take-home exam consists of twelve pages.
Its purpose is to examine your understanding of mediation, advocacy and legislation per taining to unfair dismissal.
IRHR3040 Negotiation And Advocacy Assignment
There are three (3) questions in this exam Question 2 should be answered in short essay format. Questions 1 and 3 can be answered in dot-point and/or table format. Be sure to number your responses.
Your submission should not exceed 2,000 words (+/- 10%) in total. Please note the marks available for each question.
This exam is worth 20% of your overall grade for IRHR3040 and should not be done in collaboration with any other person.
You are required to submit an electronic copy of your response through Turnitin by Turnitin will be used to check similarity scores. Late submissions will attract a 10% penalty per day.
You are required to provide references for all source materials cited including cases and legislation. The reference list is NOT included in the word count.
IRHR3040 Negotiation And Advocacy Assignment
Exam Questions :-
Question 1
Please watch this mock unfair dismissal hearing in the Fair Work Commission before the FWC President Justice Ross:
Which of the two advocates in the hearing do you consider to be more effective and persuasive based on the attributes of an effective advocate mentioned in the course readings?
Justify your answer with specific examples of the advocates performances and arguments.
When giving examples please indicate where in the hearing it occurs by noting the time on the recording hour minutes seconds).
IRHR3040 Negotiation And Advocacy Assignment
You may answer Question 1 in a dot-point or table format.
Question 2
Prior to the dismissal of Ms. xxx in the above mock FWC hearing, do you think workplace mediation would have been effective? Explain your view by considering: (a) the appropriateness of different models of mediation and (b) issues of mediator independence.
Question 3
You are the advocate for Mr xxx, whose unfair dismissal claim has been scheduled for hearing in the Fair Work Commission. You have gained access to the witness statements and background information provided on the following pages.
Prepare:
I. A timeline of events.
II. A brief opening statement to the Fair Work Commission.
III. As the advocate for Mr. xxx, you must clearly identify the strengths and weaknesses of his claim by applying the relevant tests. To do this you should:
IRHR3040 Negotiation And Advocacy Assignment
a. Refer to relevant sections of the Fair Work Act 2009 and show how they apply to the case.
b. Refer to relevant case law and show how these cases support or weaken your case. This part can be done in table format.
c. Given your responses to III. a. and b. determine whether Mr. xxx has been unfairly dismissed and provide the basis for your decision by applying the relevant tests.
IRHR3040 Negotiation And Advocacy Assignment
Harry Berkowitz – witness statement
My name is Harry Berkowitz. I am 28 years of age and married with one child. I have worked for Apex Manufacturing Ltd. since 2014 initially as a mechanic and then was promoted to team leader around May 2018. Before being dismissed my take home pay was $2,341 a fort night. Although I have found some casual jobs my take home pay is about $275 a fortnight less than I was previously receiving. I have been the Hamilton Repair Depot union delegate for the past 4 years.
On Saturday 13th October 2018 I was at my local hotel. I was drinking at the bar which was full of people when this woman approached me and asked me to buy her a drink. I refused. She insisted that I buy her a drink and tried to give me a hug. I swear I tried to get away from her. I quickly left the bar but outside I was suddenly punched pushed and shoved by this guy who accused me of molesting his girlfriend. I had to defend myself so I hit him back. He fell to the ground. He looked a bit dazed but he was OK.
The next thing I know the Police arrived and the woman from the bar accuses me of molesting her and the guy accuses me of punching him without provocation. I was thrown in the back of the Police van put in jail for the weekend and on the Monday attended court and was formally charged with sexual assault and assault. My missus was very angry with me for drinking at the bar so late, but she agreed to ring the office for me on Monday 15th October and let them know I wouldn’t be in. I asked her not to tell them where I was.
IRHR3040 Negotiation And Advocacy Assignment
When I returned to work on Wednesday 17th October I asked the depot manager Carl Rand if I still had a job because I’d previously been warned about being absent from work. He said: yes why? I told him he’d find out and that I’d talk to him later. But he wouldn’t leave it alone so I told him I’d been locked up over the weekend for unpaid fines. I lied and told him that while in jail I’d had a bit of a fight with another in-mate and that I’d needed to recover on the Monday and Tuesday. At least that explained the cuts on my face.
Then on the afternoon of the 19th October 2018, I was called into the manager’s (Carl Rand’s) office and asked to explain my absence. Seems he got a hold of the local newspaper that said I’d appeared in court on Monday 15th October charged with sexual assault and assault. He asked me if it was true and I told him that I’d hit a guy been charged but that it was self-defence, and I hadn’t done anything wrong.
IRHR3040 Negotiation And Advocacy Assignment
The following Monday the 22nd I was called back into Carl Rand’s office and told that the company had no choice but to commence disciplinary action. Carl Rand handed me a letter that said that due to the serious ness of what I’d been charged with the company had no alternative but to temporarily stand me down on full pay while they investigated the matter and that I was also to attend a disciplinary meeting to respond to allegations of:
a) being absent from work without permission
b) being a risk to other staff members due to a violent nature
c) setting a poor example to staff through frequent absences
I was OK with this because I sort of understood that they were worried about the safety of other staff and I needed to clear my name.
At the disciplinary hearing on the 25th October I was presented with a document that was obtained through a ‘fact finding’ interview with Mr. xxx. This document insisted that I had admitted to what I’d been charged with — assaulting that guy and sexually assaulting the woman at the bar. At that meeting on the 25th I strongly denied this but I was still feeling pretty bad about all the time I’d had off. I told them I was sorry. They told me to go home and wait for their further advice.
Then on 2nd November there was a knock on the front door of my house. I was handed a letter that said I was sacked effective immediately. It was delivered by Ellen Hernandez one of the girls in the office. She told me she was really sorry that I’d been sacked said she thought I’d got a rough deal and that if I were to pursue an unfair dismissal claim she’d be happy to act as a witness. I’d always got on with everyone in the office, except Carl xxx who I reckon had it in for me. I stood at the front door with Ellen while I read the letter. Because she’d been in the office on the 25th October I asked her if she had heard any loud argument between me and Mr. xxx. She said she hadn’t heard any thing.
IRHR3040 Negotiation And Advocacy Assignment
Just before Christmas the police came around and told me that all the charges had been dropped.
Carl Rand – witness statement
On the 15th October 2018 I was going about my normal duties as Manager at the repair depot at Hamilton where I am employed by Apex Manufacturing Ltd. I’ve been an employee since 1995 and held this senior position since 2009.
At about 3.00pm that day I got a phone call from Harry Berkowitz’s wife to tell me he wouldn’t be in that day — as if I hadn’t noticed. It’s a real nuisance when a team leader doesn’t turn up. Mrs. xxx didn’t give me any reason for Harry’s absence.
The next day Harry was absent again. These un explained absences have been going on for some time now. Since January this year Harry has been away six times with out explanation or prior approval.
I’ve spoken with him on two occasions and gave him a letter back in July telling him that he had to advise us of any absences and that he needed to give us evidence of why he was away — like a doctor’s certificate.
Harry turned up to work on Wednesday morning 17th October. He asked me if he still had a job and I said: yes why? I also asked him why he’d been away from work. He was pretty relaxed and said that he’d let me know later. I insisted he tell me right then and he told me that he’d been in jail for unpaid fines.
He also said he’d been punched while he was in jail and that he’d had to take a couple of days off to re cover. His face was cut up a bit.
Then on the morning of the 19th October, I got a telephone call from the General Manager of Apex Mr. xxx. He told me he’d seen a news paper article saying that Harry Berkowitz had been charged with assault and sexual assault and that I needed to ask him for an explanation. I called Harry back into my office and he admitted he’d been in a brawl in a pub and had groped a girl at the bar.
The following Monday 22nd October, I got another call from Mr. xxx who told me I had to get Harry out of the office. He told me that due to the seriousness of the offence Harry should be stood down on full pay while the matter was investigated and that he also needed to attend a disciplinary meeting regarding his frequent absences. I prepared a letter for Harry and called him into my office that afternoon. I told him that we had to stand him down while his charges were investigated. He seemed alright with this and admitted it was fair enough under the circumstances.
After the meeting on the 22nd I rang Mr. xxx back to let him know that I’d stood Harry down on full pay and that Harry had admitted to what he’d been charged with and that a disciplinary meeting had been set up with Harry for the 25th.
IRHR3040 Negotiation And Advocacy Assignment
At the disciplinary hearing on the 25th October I gave Harry a document out lining our investigation and findings. Harry read the document and became angry. He yelled and stepped closer to me as if he was going to hit me. I told him to go home that we’d investigate further and let him know the outcome. I rang Mr. xxx back and told him that I’d met with Harry and told him Harry had been really threatening.Mr. xxx said that we couldn’t risk the safety of the other staff and that Harry should be sacked.
On the 2nd November I prepared a letter of dismissal. To make sure it didn’t get lost in the mail I had one of the women in the office deliver it to Harry at his home.
Further Information :-
Harry Berkowitz was employed by Apex in the Mechanical Division and based at the Hamilton Repair Depot. He was employed pursuant to the Apex Enterprise Bargaining Agreement 2017 and the personnel policies of Apex and was a union delegate for the Australian Workers Union (AWU).
The Apex Enterprise Bargaining Agreement provides that Apex shall have fair equitable and consistent disciplinary procedures in the workplace. Among other things it declares that individuals who may not be meeting required standards and/or against whom disciplinary action is being contemplated are entitled to be informed: (1) of each allegation against them and be given reasonable opportunity to explain their behaviour and to answer each allegation and (2) that an investigation into their behaviour is in progress.
IRHR3040 Negotiation And Advocacy Assignment
Apex is a multi million dollar enterprise with operations in most of Australia’s largest cities
After his dismissal, Harry requested the AWU to make an application on his behalf for Unfair Dismissal. On 9th November 2018 the AWU applied on his behalf for remedies pursuant to s.385 of the Fair Work Act (2009) (Cth). The application was received by the Fair Work Commission on 15th November and it was confirmed as falling within the Commission’s jurisdiction. The Commission sub sequently requested a response by the employer on 22nd November. On receipt of the employer’s response on 29th November the Commission later sought to conciliate the dispute. Conciliation failed to achieve an outcome satisfactory to both parties and the matter has now been referred to the Commission for hearing on 7th February 2019.
Warning letter regarding absences without permission
Re: Absences from Work
Dear Harry,
Over the last six months you have been absent on four occasions without advising the office or providing reasons for your absence.
Please note that in future we ask that you notify us of all absences and provide supporting documentation stating the reasons for your absence.
As a team leader your actions set a poor example for staff. This is a first warning.
Regards,
Carl Rand
Manager, Hamilton Repair Depot
Notice of Standing Down on full pay
Re: Disciplinary Notice and Standing Down
Dear Mr.xxx
Further to our discussions of 17 and 19 October, you are advised that effective immediately you are officially stood down from Apex Manufacturing Ltd. on full pay until further notice. This action has been necessary due to the seriousness of the police charges. You are also to attend a disciplinary meeting at 11.00am on 25 October in my office to respond to:
a) being absent from work without permission
b) being a risk to other staff members due to a violent nature
c) setting a poor example to staff through frequent absences
Yours faithfully,
Carl Rand,
Manager, Hamilton Repair Depot
Findings from Disciplinary Investigation
Re: Findings from Disciplinary Investigation
After discussions with Mr. xxx on 17, 19 and 22 October he admitted to assault. As a result of this admission Mr. xxx will continue to be stood down from Apex Manufacturing Ltd. on full pay until further notice. This action has been necessary due to:
a) being absent from work without permission
b) being a risk to other staff members due to a violent nature
c) setting a poor example to staff through frequent absences
Yours faithfully,
Carl Rand,
Manager, Hamilton Repair Depot
IRHR3040 Negotiation And Advocacy Assignment
Letter of dismissal – Harry Berkowitz
Re: Disciplinary Investigation
Dear Mr. xxx
As you are aware Apex Manufacturing Ltd. has been undertaking an investigation into allegations arising from your absence from work 15-16 October 2018.
Following a detailed consideration of the evidence the allegations put to you were found as follows:
1. On six occasions between 1 January 2018 and 17 October 2018 you were absent from work without approval — substantiated.
2. You were provided with a warning on 20 July 2018 about your continued absences from work without approval.
3. On 15 October 2018 your wife called to say that you would not be at work that day. No reason for your absence was provided.
4.On 16 October 2018 you were again absent from work. No advice was received by the company that you would again be absent nor was an honest reason provided for your absence on your return on 17 October.
5. A newspaper report of 16 October 2018 revealed that you had been involved in an incident at a hotel on the evening of 13 October 2018 had been arrested charged with sexually abusing a woman at the bar and with assault and had been jailed for three days.
6.During a disciplinary hearing on 25October 2018 you acted in a threatening manner towards a fellow employee.
In the interests of the safety of your fellow workers it has been determined that formal disciplinary action is appropriate and that your employment will be terminated effective today. You will be paid 2 weeks pay in lieu of notice plus any other out standing accrued entitlements.
Yours faithfully,
Carl Rand
Manager, Hamilton Repair Depot
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