Mid Trimester Assignment Question (Newcastle)

Leonardo Cosencho worked for Pizza Plus Pty Ltd as a waiter. This involved serving customers in the pizza restaurant and occasionally cooking the pizzas. He was employed on a full-time basis and earned $65,000 per annum. He was employed for just under seven months before being summarily dismissed two and a half weeks ago.

Leonardo was dismissed for a serious breach of conduct because of complaints involving two young fellow female employees at the pizza restaurant. It was alleged that Leonardo had:

asked when one of the young women would leave her boyfriend and run away with him;

said that the young women were good-looking, asked for their telephone numbers, and said he had dated girls their age before;

asked for a kiss when the young women had missed his birthday, leant over the counter to them, pressed his cheek to them and made them feel uncomfortable and pressured into kissing him on the cheek;

touched the young women on the waist and hip, and hugged female staff when leaving; and

constantly called the female staff darling, beautiful sweetie and/or gorgeous

Leonardo said he was not at the time made aware of the complaints or given an opportunity to respond to them or clear his name.

He denied having asked anybody to run away with him or date him as he is not interested in young women as a 48-year-old. He acknowledged that he did hug female staff after getting to know them well, and they hugged him in return. For example, he hugged staff at other places he worked who were in their 40s. If he did ask for a kiss after his birthday, it was due to his cheeky nature and tendency to joke around. He said he did frequently refer to the female staff as darling, beautiful, sweetie and/or gorgeous but that he never meant to offend anybody by using these terms.

At the meeting called by management to discuss the incidents and his future, Leonardo explained his behaviour by saying that as an Italian, showing affection in this way was natural to him as it was part of his culture growing up in Italy. He stated that he believed his behaviour was consensual and nobody every complained to him about the way spoke or acted.

In order to protect the privacy of the other 10 employees who worked with Leonardo, he was not told specifically which two female employees had made the complaints. Despite hearing Leonardos explanation, management decided that his behaviour was too upsetting to the other staff members involved and immediately handed him a pre-prepared termination notice.

Can Leonardo make a claim for unfair dismissal under the Fair Work Act 2009 (Cth) and if so, is he likely to be successful? Explain your answer.

Instructions to Students

1. The recommended word length is 1500 words. Assignments must appropriate the recommended number of words. Marks will be deducted if this word range is materially exceeded or not reached.
2. If any material is relied upon as authority for a proposition put, such material must be properly referenced using the APA 6th referencing style.
3. General Bibliographical References are not adequate to comply with the above. Your referencing and your bibliography do not count as part of the word count for the assignment.
4. All works consulted in relation to the assignment should be cited in an alphabetical list at the end of the assignment. (Bibliography)
5. It is expected that student will use/consider sources other than the prescribed text to complete this assignment.

Assignments will be marked on the following criteria:

(a) Knowledge and research of the assignment topic;

(b) Identification of the relevant law and the legislative objective(s) that underpin the relevant law;

(c) Identification of the relevant legal issues;

(d) Development of argument(s) and demonstrated ability to identify the arguments both for and against the matter in dispute;

(c) Conclusions reached and whether they are properly supported and follow logically from the argument(s) put;

(d) Conciseness of presentation, spelling and clarity of expression;

(e) Whether the student has properly referenced their work using the APA 6th style

(f) Grammar & punctuation;

(g) The degree of independent thought exhibited by the student.