Assignment Task:

SCENARIO:

Kyle graduated from university in 2008 and went to work for the law firm Abbott Turnbull Nelson (starting February 2008). 

He is also a keen amateur-radio presenter, so he also stayed on in his role as a presenter on UNI-FM, the university’s radio station, doing a weekly segment. 

Being a particularly gifted young law graduate he did well at Abbott Turnbull Nelson and as a result of his high performance now works as an Associate on a total remuneration package of $155,000(inclusive of statutory superannuation at 9.5%). 

Kyle is covered by an individual contract that contains a number of ‘standard’ conditions for Associates in the firm. (He is not covered by an award or Enterprise Agreement). 

When he signed the Letter of Offer at the start of his contract, it included the following statements (among others): 

•Your hours of work are Monday to Friday, from 9 am to 6.00 pm. 
•Our firm is different: we value work/life balance and will assist employees to achieve it, through reasonable working hours and fair treatment. 
•You agree to abide by Firm’s Staff Manual, as amended, from time to time, by the Company at its total discretion. 
•Reputation: Associates will not bring the firm into disrepute. Such conduct will be treated with the utmost seriousness. 

Surprisingly, there is no express term in the written contract regarding notice of termination. 

The Staff Manual was also amended in January 2010 with the addition of a number of extra clauses including: 

Staff are required to work such reasonable overtime as may be required by the firm, in order to meet its short-term business needs. This overtime is unpaid. The firm will, however, endeavour to provide a New Year bonus to employees in appreciation of their hard work." 

“...All employees are required to seek written permission for employment outside the firm.” 
Kyle’s hours of work have steadily increased during his time with the firm. He is now working most nights and frequently works on weekends. On a bad week, Kyle will work 60-70 hours. Increasingly, this is becoming the norm. He has never received a New Year bonus. 

However, he still manages to do his weekly radio segment. 

On one of these broadcasts, he makes a prank call about a local restaurant which results in the person receiving the call being admitted to hospital suffering a panic attack and severe chest pains. 

When news of the prankspreads, a journalist discovers that Kyle works for Abbott Turnbull Nelson and publishes a story about the prank which mentions where Kyle works. 

When Kyle sees the story online while at work, he becomes stressed, goes to the pub for lunch and doesn’t return for 2 hours. When he returns to the office, he is called into the Managing Partner’s office and his employment is terminated immediately, without Kyle being given an opportunity to speak. 

HR tells Kyle that he’ll be paid until the end of the week though that he won’t receive any other payments (including for accrued leave entitlements) because the firm has suffered significant damage to its reputation and is withholding these amounts to compensate it for such damage. 

You are a partner of a small employment law firm. Kyle isn’t sure of his rights and has come to you for advice. 

Advise Kyle as to his legal entitlements and whether he should commence a claim against Abbott Turnbull Nelson. If so, on what grounds and in what jurisdiction? What are his prospects of success –or risks of failure (and the likely remedies he might obtain)?


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  • Posted on : February 15th, 2019

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