Debbie commenced employment with Real Endeavours Pty Ltd and worked as a sales agent

| March 30, 2017

Question
Part B: Extended response question: Letter to a lawyer (15 marks)

Scenario

In September 2011, Debbie commenced employment with Real Endeavours Pty Ltd and worked as a sales agent in a call centre with a male manager. In March 2012 she was promoted to the claims department.

In May 2012, Tom, a colleague who Debbie had sat beside in the call centre, made a complaint about harassment and intimidation by the call centre manager. Debbie was asked by Tom to come forward and provide supporting information. Debbie also lodged a formal complaint against the same call centre manager citing harassment and inappropriate behaviour.

You work in the Human Resources Division within Real Endeavours Pty Ltd. You decide that these complaints need to be investigated. During the course of the investigation a number of staff, including all of the persons whom Debbie suggested could support her allegations are interviewed. The emails of several staff are searched for evidence of harassment. In the search you find that several staff, including Debbie, had sent emails which attached pornographic photographs. (The company has an Electronic Use and Information Security policy which stated: “Employees must not download, retrieve or send sexually explicit, harassing, racist or otherwise discriminatory or illegal material from the Internet or email at any time. This sort of behaviour is considered to be a serious misconduct, and may result in the instant dismissal of the employee(s) involved.”)

Emails from Debbie to others are also checked during this investigation. One such email appeared to indicate that she had some form of personal relationship with Tom; and another was to the Call Centre Manager, which appeared to express appreciation for his constant flirting.

When Debbie isquestioned about her relationship with Tom, she denies that she has any personal relationship with Tom beyond that of a normal working relationship. Debbie further states that she had forwarded the pornographic email to her manager (at his request), and to a female colleague (who had asked why she looked so shocked). Debbie did not reveal that she had also sent the pornographic email to two members of her family and a female person who did not work for Real Endeavours Pty Ltd.

You have come to the conclusion that Debbie’s complaint cannot be substantiated.

One of the employees you interviewed now brings to your attention a blog that Debbie recently wrote on a social-networking webpage. The blog can be accessed by a Google search with the words ‘Debbie’ and ‘harassment’. The following wording was on a page alongside a photograph of Debbie and her name:

“Friday, August 3, 2012

I believe that you should always defend the truth, and find the courage to stand up for what is right. There is a place that shall remain unnamed that I thought was based on the same principles.

I have just been thru an investigation that in the end turned the victim into the perpetrator. The investigation tampered with evidence and was biased.

This man was sexually advancing himself on his colleagues. When there were a couple of people that were courageous enough to come forward their statements were dismissed because they were deemed as good friends.

Where is the concern of the Senior Management that is meant to be protecting the workers from harassment, intimidation, bullying and sexual advances that were unwanted, uninvited and unsolicited?

At the end of the investigation, I was told that it was all unsubstantiated. That he has witnesses and people within the workplace that said I instigated it all. I wanted it. Not one signed statement on his behalf. But two signed statements on my behalf, one from the employee who sat next to me every day for 5 months. He was conveniently sacked the day they were meant to deliver their results and because he was sacked his statement was not credible.

What more can I do?

Debbie”

You write a letter to Debbie requesting her to remove the blog and to cease publishing it (and any other material that has the real potential to damage the reputation of the Company) in the public arena. Debbie replies that she intended it to be only available to ‘friends’ and that the blog was considered the gentlest and safest way to attempt to bring other aggrieved colleagues forward who have otherwise been too scared about losing their jobs to come forward. Debbie has not removed it.

You need to decide what the best course of action for Real Endeavours Pty Ltd to take, within the law, in dealing with Debbie and then you are to ‘run it past a lawyer’. Write a letter to a lawyer practising in a suitable area of law along the following lines:

· introduce yourself;

· explain the fact situation (the legally relevant facts);

· explain what Real Endeavours Pty Ltd wants to do and how you think Real Endeavours Pty Ltd is entitled to act, within the law (i.e., the course of action you have worked out is the best one for Real Endeavours Pty Ltd); and

· ask the lawyer for advice about the legality of your plans and about any other legal concerns you have arising from these facts.

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