LAWS 105: Legal Foundations - Memorandum of Advice - Assessment Answer

Legal Foundations Assignment

Assignment Task

This assignment requires you to create a fact scenario in which a fictitious client is facing a legal issue/s and write an internal memorandum of advice based on the scenario. This assessment task is heavily embedded in the curriculum and the Subject Coordinator will be discussing it regularly in lectures.

Following is a list of preliminary instructions:

• Choose an area of law that interests you, other than international law and constitutional law. Further, the area of law cannot relate directly to anything that you are concurrently studying in another subject. Consult with the Subject Coordinator or your tutor if you have difficulty choosing an area of law.
• Start your research by utilising secondary sources such as textbooks and journalarticles to ‘get a feel’ for the area of law. The secondarysources should provide reference to leading authorities in that area of law.
• Choose a case that interests you and is a leading authority. You may refer to more than one case. Conduct the necessary checks to ascertain that the case(s) is current. The case(s)must involve application of legislative rules (rather than just applicationof a common law rules).
• Create a fictitious scenario that issimilarto the facts of the case, but not so similar that the case is definitelyapplicable. The idea is to construct facts upon which the case is arguablyanalogous and applicable, but also arguably distinguishable.The underlying purpose of this process is to encourage deep analysis of therelationship between rules, facts and issues. The objective is to create fictitious facts in the ‘grey zone’, that is, wherethere are strong arguments on both sides of the relevant issue/s.
• Assume that you are a junior solicitor in a local law firm and that you have just conducted an interview with a new client. The partner in your firm (your boss) was unable to attend and requested that you conduct the interview to elicit the material facts from the client. You are required to draft an internal memorandum of advice for the partner to peruse and approve. Your memorandum should include the following:

  1. a ‘brief answer’ (a short summary of your final advice);
  2. a clear statement of the relevant facts;
  3. an outline of the legal issues;
  4. reference to, and explanation of, the applicable law (legislation and cases);
  5. application of the applicable law to the relevant facts;
  6. your advice to the client; and
  7. anything else that you deem necessary.

  Your partner has also asked you to submit a list of all resources utilised (bibliography). The partner (an experienced lawyer) is your ‘audience’. Accordingly, the memo should be written in plain English, but at an appropriate level of sophistication.

  The Subject Coordinator will provide verbal instructions regarding how to draft a memorandum of advice and all other relevant aspects of the assessment task as the semester progresses

Facts

• Client (Ann) was sexually harassed by her boss.
• She was asked severally by her boss to go out with him and he took advantage of her low position in the firm by requesting to have sex with her.
• She refused to have sex with him.
• She was fired after 1 month for poor performance which was not the case.

Legal Issues

Ann was working as a subordinate staff in a Private business consultancy firm owned Peter Kirkman. She was a loyal and beautiful employee whose performance appraisal results revealed her determination and commitment to her work for four years. She was liked by her boss Peter Kirkman due to her way of doing work and early reporting to the organization as well as having no indiscipline cases. When the secretary of the boss was fired for fraud, she was promoted to be the secretary and she was very glad for the new job. Two months later, her boss started asking her to remain behind after other employees have left and he would frequently ask her for dinner. The boss started asking her about personal life and then started talking to her about sex stories and how he would like to have sex with her. She was resistant and could tell him often that she would not be involved in any sexual affair with her boss as it could destroy her career and her life. She started declining dinner invites from her boss as she did not want to disappoint him and she did not like the idea of having an affair with her boss. One month later after those incidences from her boss, she was fired for poor performance and dismissed from the firm.

This case resembles Connors v. Richardson which happened in Australia 2008. Connors was 15-years old and had her part-time first job after school in a local first-food restaurant. David Richardson, who was her boss and owner of the restaurant, took advantage of her innocence and young age to sexually harass her. She was afraid to tell anyone and feared telling her boss that she did not want it as she thought she was supposed to respect him. Months later, she resigned and sued him to the Anti-discriminatory Tribunal of Tasmania which ruled in favour of Connors and Mr. Richardson was ordered to pay her $12,000.

Legally, every worker has right for employee rights and freedom of suing any person who would sexually harass her in the firm. Since she feared talking rudely to her boss and she wanted to protect her job, she would resist politely. Sexual harassment involves several elements such as unwelcomed sexual moves by one party to the other without the consent of the other party, requests for sexual favours from an uninterested person and any physical or verbal conduct of any kind of sexual nature. Ann’s boss seems to have been involved in all of the three elements of sexual harassment above. Normally, sexual harassment in a company or a place of work requires a procedure for filing the case. It involves the offended (sexually harassed person) compiling a report of the harassments acts from the offender to the relevant authority in the organization dealing with employee issues. The company will, in turn, take the necessary measures of taking actions to the offender and face the full force of the law for his actions.

Ann was supposed to follow this procedure but there was one problem. Her boss was the owner of the company she was working for as his secretary so, there was no way she could run to him for assistance. Also, there was no way she could run into any other person in the same company and address the matter to help her without getting fired. Furthermore, the legal procedures involved in filing a sexual harassment report takes a long time for it to be heard and determined. Normally, the offended or the firm’s responsible body for filing the case in the court is required to have a pre-file to the EEOC, 180 days from the day that the harassment has been happening. After the EEOC approves, the case has then to proceed to the court where it will be filed for a hearing. The offended will have to look for funds to hire a lawyer, have enough witnesses, as well as being consistent with the facts during the hearing as stated in the case.

The deadline for the filing of the suit is never extended as there has to be time for internal investigation. Even if her boss had not fired her and she had decided to report that mater, she would not have continued serving the same boss who was harassing her while the investigations were underway. In either way, she would have stepped aside to enhance uninterrupted investigations of her boss. She would then spend money on hiring an attorney who would be representing her case. She would suffer a double loss as she would have lost her job then would pay her attorney with her own money. Should it turn out that there is no enough evidence showing any acts of sexual harassment by her boss and the fact that there was no witness as she had never told anyone about the matter, then it could cost her much. It might jeopardize her integrity and chances of getting another job as other employers might fear to employ her for either poor performance or knowing that she might again come up with the same claim in their firms.

Applicable Law

The sexual harassment Act 1984 states that sexual harassment is a gender-based discrimination, especially to the opposite sex. It protects the employees from being sexually harassed by their colleagues or bosses at their place of work. The commission responsible for sexual harassment investigates the matter internally and can have several ways of dealing with the matter like conciliation which is the best method for protecting the employee’s job. If the sexual harassment commission fails, then the matter can be taken to court.

In Connors v. Richardson, the Anti-discriminatory Tribunal used the sexual harassment Act 1984 to safeguard the rights of Connors. The steering judge said that Mr. Richardson had gone against the law by sexually harassing her female employee, then warning her not to tell anyone about his acts which were unlawful. Since Connors was a minor and also not matures enough to know what to do, she feared telling anyone and kept quiet. Therefore, Mr. Richardson was to pay for her psychological torture and mental damage he had caused her. The Judge ruled in favour of Connors and found Mr. Richardson guilty after three years of investigation and case proceedings.

Since Ann had already been fired from the firm, the internal investigation of the act can be helpful for her to get justice. The court can request her performance report in the organization in order to determine whether it was legit for her to be fired for poor performance or if her boss just fired her because she was uncomfortable with his sexual harassment acts. Ann has to hire an attorney that would handle her case and help her in filing a formal complaint into the court, as well as defending her to ensure that she gets justice.

Everyone has the right to work in a non-hostile environment free from sexual harassment. Therefore, in as much as Ann has already been fired, she believes that the reason why she was fired was due to declining her boss’s sexual requests. The sexual harassment act also prohibits the employers from taking any kind of action to cover up their unlawful acts. Her boss fired her because he feared her filing a sexual harassment case against him and that is why he got rid of her before it reached that point. That act by her boss can explain her case in the court and it can help her receiving compensation for the damages she had gone through as well as punishing her boss for that act. Ann keeping quiet about the matter until she was fired is pervasive. She should have acted on the matter since the law protects her. She might end up lacking any sufficient evidence as she lacks witnesses and there is a high probability that no one in the firm might be willing to support her claim since they also fear being fired. However, her performance record might reveal otherwise, and that should give her confidence for filing the case in court.

The sexual discrimination report 2015 in Australia reveals that one out of five women at the place of work are harassed by their male superiors. It also reveals that women sexual harassment is one of the reasons for being uncomfortable and a barrier to full participation in their works. The law also requires the employers to increase sexual harassment awareness in their companies and put up the necessary measures to prevent these acts. They are also required to take necessary legal actions against the offenders. Since Ann’s boss was her employer and the owner of the firm, it was very hard for him to conduct the sexual harassment prevention. She deserves justice and her boss has cost her career as well as making her working environment hostile. Private investigation of the act would be effective by the commission. Hiring an attorney would also help her recover from the damages she has suffered. The employer should compensate her, but the problem is that she will be the one looking for another job on her own.

Conclusion

In summary, sexual harassment is an unlawful act at the place of work which makes an employee feel humiliated and uncomfortable. It hinders an employee from performing her tasks well and thus seems to destroy her career. Ann was sexually harassed by her boss for three months and when she declined the requests from her boss, she was fired for poor performance. She has a legal right to sue her boss and be compensated for the loss of her job and making her work under a hostile environment. The fact that she did not tell anyone about the harassment at the workplace, and that her boss was the owner of the company, it definitely jeopardized her procedure for getting the justice. In addition, the internal investigation might not be successful and the fact that she has no any witness to her harassment might make her lose her case. However, she kept high-performance record all through and that might help find her former boss guilt of his acts.