BSL202 Workplace Law Mid-term Assignment Sample Murdoch University Singapore

Question 1 (25 marks)

Lorraine has just graduated from a Bachelor or Arts majoring in Art History. She has a specialization in 15th-century Italian artwork. It has been quite tricky for Lorraine to find gainful employment in her area. Graduate positions that specialize in 15th-century Italian artwork are few and far-between. Given this, Lorraine is very excited to see an advertisement on Art-WORK.com, a popular website for art-related job advertisements. The advertisement is for an entry-level position working as an assistant to John Bochetto, the director of art at Little Florence Art Gallery. 

The advertisement says the following: Amazing opportunity to work with one of the most esteemed Italian art experts. As assistant to the director of art, John Bochetto, you will have the opportunity to travel, study and develop your career. Training will be provided and you will work side-by-side with specialists in the area and will work directly with the Faccini collection in the coming months. Apply now!”

Lorraine applies and is very happy to receive an interview. At the interview she meets with a representative from HR, Rhey and a junior art advisor, Billings. In the interview both Rhey and Billings explain what the job will be like. Billings says that all new employees are given training to work at the gallery and are funded a trip to Florence in order to further develop their specialisations. 

Rhey tells Lorraine that she will love working with John Bochetto because he is very dedicated to his protégés and ensures that they are immersed in the artwork and the environment. Billings agrees with this. Without reservation Lorraine takes the job and signs a very simple employment contract that states hours of work, remuneration and entitlement to vacations etc. She starts work the next day. She is surprised but pleased to find that one of her fellow graduates, Henry, is starting on the same day as her and in the same position. They went to university together and worked as partners on multiple occasions.

 The first big event of the day is meeting John Bochetto. While John is polite but aloof to Lorraine, John is quite friendly to Henry. Within the first two hours of the day, Lorraine is shown to a desk and given a mountain of paperwork to tackle. Henry, on the other hand, spends the entire day with John inspecting various pieces of art. 

This pattern continues for six months. Lorraine finds she is given administrative duties only and Henry has been given four opportunities to attend gallery shows with John, has been given training on how to discuss various artwork with clients and has been promised a study trip to Florence within the next three months. Further to this Lorraine receives an email from HR stating that because she has less experience than Henry, she will need to take a refresher course within the next six months. 

Lorraine is aghast. She was told there would be study opportunities in this position, but going back to study what she already knows is not what she had in mind and her and Henry had the exact same qualifications coming into the position. Further she has not been allowed in the same room as the Faccini collection due to its preciousness and fragility. 

Lorraine decides to approach Rhey from HR and John to discuss these issues. Rhey is very quiet, but John explains why this is happening. He says that he has a firm belief that 15th century Italian artwork is very inappropriate for young females due to the high level of nudity in the artwork. Because of this, he does not see fit that she is given the same position as Henry in terms of direct contact and discussion of artwork. Further he explains in regard to the Faccini collection that only art associates aged over 50 years of age are allowed to work with the original pieces as they are the only ones that have enough experience. 

Lorraine is very upset. After reading the advertisement and attending the interview, she thought she had a pretty good idea of what the position would be like. 

Lorraine comes to you for advice on the following: 

a) Whether Lorraine is able to rely on what was advertised by Little Florence Art Gallery and what was said in the interview – consider this under both common law and statute.

Under common law, advertisements and statements made during interviews can form part of the employment contract between the employer and the employee. If Lorraine can establish that the advertisement and statements made in the interview formed a contractual offer and she accepted that offer by signing the employment contract, she may be able to rely on what was advertised and said during the interview.

To determine whether the advertisement and interview statements formed a contractual offer, several factors need to be considered, such as the intention of the parties and the terms of the advertisement and statements. If the advertisement and statements were sufficiently clear, definite, and not mere puffery or representations of future intentions, they may be considered part of the contract.

In this case, the advertisement on Art-WORK.com stated that Lorraine would have the opportunity to travel, study, and develop her career. It also mentioned working directly with the Faccini collection. These statements could be seen as promises or representations of the job duties and opportunities Lorraine could expect. Similarly, during the interview, Billings mentioned that new employees receive training and a funded trip to Florence to develop their specializations.

However, the advertisement and interview statements may not be enforceable if there are contractual terms in the employment contract that contradict or supersede them. The simple employment contract Lorraine signed may contain provisions that limit her role or responsibilities, such as administrative duties only. Therefore, it would be necessary to review the terms of the employment contract to determine their impact on the reliance on the advertisement and interview statements.

In addition to common law, statutory provisions can also be relevant. Employment laws, such as those prohibiting false or misleading representations in job advertisements, may provide Lorraine with additional protections. If the advertisement contained false or misleading information and Lorraine relied on it to her detriment, she may have a claim under such laws.

b) Whether Lorraine is able to bring a discrimination claim against either John, Little Florence Art Gallery, or both.

Lorraine may have grounds to bring a discrimination claim against both John and Little Florence Art Gallery based on the information provided. Discrimination laws vary between jurisdictions, but the following analysis provides a general framework for considering Lorraine’s situation.

1. Gender Discrimination: John’s explanation that he believes 15th-century Italian artwork is inappropriate for young females due to nudity raises concerns of gender discrimination. If Lorraine can establish that she has been treated less favorably than Henry based on her gender, she may have a valid claim. John’s actions, if based on stereotypes or assumptions about the suitability of artwork for young females, could constitute direct or indirect gender discrimination.
2. Age Discrimination: John’s statement that only art associates aged over 50 are allowed to work with the Faccini collection suggests potential age discrimination. If Lorraine can demonstrate that she has been treated less favorably compared to older art associates solely due to her age, she may have a valid claim for age discrimination.
3. Employer Liability: Little Florence Art Gallery may also be held liable for discrimination if they failed to take appropriate steps to prevent discrimination or failed to address Lorraine’s complaints. Employers can be held vicariously liable for the discriminatory acts of their employees, especially if they were aware of the discriminatory conduct or should have reasonably known about it.

To bring a discrimination claim, Lorraine would typically need to follow the relevant legal procedures, such as filing a complaint with a relevant employment or anti-discrimination agency and exhausting administrative remedies before pursuing legal action. It is important to consult the specific anti-discrimination laws and regulations applicable to the jurisdiction where Lorraine is located to determine the precise requirements and procedures for pursuing a discrimination claim.

Note: This answer provides general legal information and should not be considered as legal advice. For specific legal advice tailored to your situation, it is recommended to consult with an employment lawyer or seek professional legal assistance.

Question 2 (15 marks) 

Trey is a senior art executive at Little Florence Art Gallery. He has worked at the gallery for 15 years and started as a junior intern and slowly made his way to being a senior art executive in charge of the department of 14th century Italian art. He has been a senior executive for the last 6 years. He has recently found out that the gallery has decided to restructure. The restructure proposes to amalgamate the departments of the 10th to 15th centuries of Italian art into one department. 

The director of the department will be John Bochetto and John will also be the only senior executive in the department. All the other executives will become art associates. For Trey this would mean a downgrade in his position. 

An associate is generally for someone who has work between 5-10 years at a gallery, while Trey has worked 15. Further the pay is lower and the hours are longer. The work is also different. Rather than liaising and communicating with ‘big’ clients, Trey will now be dealing with public gallery viewings and general inquiries. Trey will also now have to answer to John as his supervisor in the gallery, when they have been in equal positions for the last five years. The gallery has offered Trey this new position under the restructure, and given all the considerations Trey has decided not to accept the position.

As a result of this, Little Florence Art Gallery has terminated Trey. Trey comes to you for advice. 

Advise Trey

Trey’s situation raises potential concerns related to his employment rights and the fairness of the proposed restructure. Based on the information provided, I would advise Trey as follows:

1. Review your Employment Contract and Policies: Start by reviewing your employment contract and any relevant policies or guidelines that govern your employment. Pay particular attention to clauses related to termination, restructure, and changes in job roles or responsibilities. This will help you understand your rights and any obligations the gallery may have towards you.
2. Consult an Employment Lawyer: Given the potential complexity of the situation, it would be advisable for Trey to consult with an employment lawyer who specializes in employment law. An experienced lawyer can assess the specific circumstances, review the relevant documentation, and provide tailored advice based on local employment laws and regulations. They can help determine if Trey has any legal grounds for challenging the termination or the proposed changes to his role.
3. Assess the Fairness of the Proposed Restructure: Evaluate whether the proposed restructure and the offered position as an art associate are fair and reasonable in light of your qualifications, experience, and length of service. If the new position represents a significant downgrade in terms of status, responsibilities, compensation, and working conditions, it may be considered a constructive dismissal or a breach of the employment contract. An employment lawyer can assist in determining if the proposed changes are legally permissible.
4. Consider Negotiation and Mediation: Depending on the circumstances and the advice provided by your employment lawyer, you may consider negotiating with the gallery to seek a more equitable solution. This could involve discussing alternative positions, compensation packages, or even exploring the possibility of severance pay or other benefits to compensate for the significant changes being imposed on Trey’s employment.
5. File a Wrongful Termination Claim: If it is determined that the termination was unjust or based on discriminatory grounds, Trey may have grounds to file a wrongful termination claim. However, the viability of such a claim would depend on the specific employment laws and regulations applicable in Trey’s jurisdiction and the advice provided by an employment lawyer.

Remember, the advice provided here is general in nature and may not be applicable to Trey’s specific situation. It is crucial to consult with an employment lawyer who can provide guidance tailored to the specific details of your case and the local employment laws governing your jurisdiction.

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