You are a solicitor in a law firm specialising in workplace law. Your supervising partner has asked you to assist on a file. Your firm’s client, an employer, is seeking advice in relation to a claim of unlawful discrimination, amongst other things, in the workplace. Prepare a detailed memorandum of advice for your supervising partner setting out your understanding of the law as applied to your client’s case, your recommended advice to the client and next steps.
Mr Anjelo Latu has engaged your firm to respond to a complaint lodged by an employee, Linda Griegson. The complaint has been lodged against Mr Latu’s company, TAHL Pty Ltd, in the Queensland Human Rights Commission.
Ms Griegson’s claims are set out in the complaint documents received by the Queensland Human Rights Commission and sent to Mr Latu.
Ms Griegson’s complaint:
Ms Griegson claims the company discriminated – or allowed acts of discrimination – against her on the basis of her religious beliefs, sex and disability. Further, Ms Griegson alleges the company allowed acts of harassment and bullying against her.
Linda Griegson has been employed by TAHL Pty Ltd since June 2019, as an accountant in middle management. In late 2019, Linda joined the Brisbane Temple of the Cross Church. The Church is a standalone community which has no affiliation with any organized religion or Christian denomination. The church was formed by Pastor Ross, who was born in the USA and who immigrated to Australia 5 years ago, with his wife and young family.
Linda’s work colleagues became aware of her affiliation with the church after one of them, Mary Smith, saw her coming out of the church temple situated in the Bayside of Brisbane. In the staff room that week, Mary confronted Linda saying, “I cannot believe you are part of that group! I know all about that Ross Yank; he is an anti-vaxxer who believes Covid was started by a group of Democrat Senators in the USA. Your church has some strange beliefs.”
Linda tried to explain to Mary that she was incorrect regarding Ross’s views on Covid but regardless, they were not the views of the church. In fact, she knows that most of the congregation has been vaccinated and give no credit to anti-vaccination arguments.
Craig Jones, who was also an accountant at the business, heard the conversation and did some research on the church. He discovered nothing about their views on Covid but did discover the church follows five tenants, one being a strict belief in celibacy before marriage. Over the next 12 months, Craig made several comments to his work colleagues, in situations where he knew Linda could hear him, that only unattractive people or those with a mental illness would embrace celibacy.
The comments made Linda feel upset and humiliated, but she chose to ignore them, going out of her way to avoid working directly with Craig or spending too much time with him.
At the staff Christmas party in December of 2020, Linda found herself alone in the staff kitchen when Craig, slightly inebriated, walked in. “Why have you been avoiding me all year, Linda? You know I am keen for you and me to hook up. You will break your vows eventually, so it might as well be with me.” Linda became very upset and immediately left the party.
In early 2021, Linda suffered a minor stroke. While her cognitive capacities did not suffer, she lost 40% of her sight in one eye and 100% in the other. The loss of sight required adjustments to be made for her home life and work. This included the company purchasing software which allowed audio transcription of documents.
In April of 2021, an unscheduled meeting was called, which both Linda and Craig were required to attend. Linda’s office was on a different floor of the building to where the meetings room was, and she did not get to the meeting until five minutes after everyone else. While the others were waiting, Craig sent a typed message to another colleague in the room stating, “Why are we waiting for that woman? Seriously, if she can’t see, she should stay at home. Give her a pension or something but get her out of this office. Oh wait, she may be late because she is on the phone to her boyfriend. No, that’s right, she does not have one and never will; who would want to go out with someone with her crazy religious beliefs.”
The message was sent via a Teams site created specifically for the meeting so documents could be shared. Anjelo, who was also in the meeting, saw the message and told Craig it was inappropriate and to delete the message. “It is just a joke. It’s gone; no one is hurt. Anyway, she can’t read so who cares.” What Craig failed to understand is that all messages and documents placed on the site were transcribed into audio for Linda, as soon as created, and deleting the message did not delete the audio.
Linda heard the message after the meeting when she went through all the documents discussed at the meeting. Again, she felt humiliated, but did not say anything.
The next week, Linda requested she be moved to a separate office on the same floor as the meetings room, as she was usually required in the room for a range of meetings and conferences, at least twice a day. The open plan system used in the building was not really designed for someone with sight impairment, as she found it difficult and time-consuming needing to move from her floor to the meetings on the floor above.
Anjelo told her he would try to work something out. A week later, nothing had been done so she suggested to him that she could have a small room close to the meetings room, which was currently used as a storage room for stationary. She was concerned about the delay in the move, as she found the moving around the building quite exhausting and slightly dangerous; she had already tripped and fallen a couple of times.
In early August, Linda overheard Craig telling a joke in the kitchen. The joke was sexually explicit and referred to people, who were celibate, as clearly mentally ill.
Linda felt humiliated by all of the above remarks from Craig and has had enough of what she considers to be ongoing cruel and unwanted behaviour. She thinks her manager, Anjelo Latu, is not doing enough to stop harassment and discrimination in the workplace.
Linda has lodged a complaint with the Queensland Human Rights Commission. She has requested an early conciliation conference.
Mr Anjelo Latu tells you he was unaware of the incident at the staff Christmas party. He is unaware of any other harassment or remarks and believed the staff to generally be quite professional in their interactions. Anjelo believes he responded appropriately to the incident re the message in the staff meeting.
After Linda’s request for a separate office, Craig met with Anjelo to complain, stating that it was unequal treatment, as he and the other accountants on the same pay level are stuck in the open planned office in a tiny cubicle. Anjelo had some concerns about potential unequal treatment, so he’s put off making a decision to allow Linda her own room. Anjelo has told her, “I’m working on it, I’ll let you know when I’ve worked something out.” Anjelo thinks the move into the storage room is a good solution, but he’s worried about making a decision that will have to make him deal with Craig again.
Anjelo was informed about the joke Craig made in the kitchen, and he called Craig into his office and asked about the joke. Anjelo told him to refrain from making such jokes in the future, as some might find it offensive.
All the employees know that the company does not condone any harassment; this was made clear to them during their induction, but there is no written policy on this.
Anjelo wants advice on his, and his company’s, liability in relation to Ms Griegson’s complaint and the likely consequences of the complaint.
Your supervisor now wants you to consider this matter and draft a memo of opinion on the client’s potential liability and suggested next steps, including how the claim will likely proceed and how to avoid possible breaches of the anti-discrimination legislation in future.
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