Business Law Legal Advice on the Basis of Case Studies

Business Law Legal Advice on the Basis of Case Studies
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Executive Summary
This assignment provides a complete analysis of the terms wrong dismissal, unfair dismissal, breach of contract, discrimination etc. on the basis of a couple of case studies. The assignment provides an overview of legal advice on the discrimination in pay rate, wrongful dismissal and breach of contract allegation. Apart from that it also focuses on the Equality Act 2010 and its characteristics.
Table of Contents
TOC o 1-3 h z u Scenario PAGEREF _Toc4061553 h 3Question 1 PAGEREF _Toc4061554 h 3Directors PAGEREF _Toc4061555 h 3Company Secretary PAGEREF _Toc4061556 h 4Auditor PAGEREF _Toc4061557 h 4Role of a Shareholder PAGEREF _Toc4061558 h 4Raising of Finance PAGEREF _Toc4061559 h 5Conclusion and Recommendation PAGEREF _Toc4061560 h 6Question 2 PAGEREF _Toc4061561 h 6Senior Employees PAGEREF _Toc4061562 h 6Wrongful Dismissal PAGEREF _Toc4061563 h 7Unfair Dismissal PAGEREF _Toc4061564 h 8Problem of Program Solution Limited PAGEREF _Toc4061565 h 8Conclusion PAGEREF _Toc4061566 h 9References PAGEREF _Toc4061567 h 9
Scenario
You are a junior legal business advisor, working in the legal department of Prometheus, you have been asked by your line manager to Chair a series of group discussions.
Question 1DirectorsAccording to the Corporation Act 2001, a managing director for the company may be appointed for a maximum period of 5 years who can be an individual. A person who is already a director of a public company or it subsidiary can be also appointed as the director of other company with the approval of the board of director CITATION Aus16 l 1033 (Commission A. S., Becoming a director of a company, 2016). However, there is no such restriction in respect of appointment to become a director of a company. There must qualification and qualities to become a director of the company CITATION COR l 1033 (CORPORATIONS ACT 2001 - SECT 1.5.5,Company directors and company secretaries).
Company SecretaryThe appointment of company secretary in a public or private company depends on the requirement of the company. The Board of the company can appoint the company secretary or more than that for a fixed period as it seems fit. A company secretary may be appointed as whole time or part time CITATION COR l 1033 (CORPORATIONS ACT 2001 - SECT 1.5.5,Company directors and company secretaries).
According to Sec. 204A of the Corporation Act 2001, a public company can appoint one company secretary and a private company can also do so but the person who is being appointed as a company secretary must be a resident of Australia. As per the provision of Section 204B (1), a company secretary must have attained the age of 18. Under section 204D of the Corporation Act 2001, the Board of Directors can only appoint a company secretary CITATION COR l 1033 (CORPORATIONS ACT 2001 - SECT 1.5.5,Company directors and company secretaries).
AuditorThe auditor of the company is required to be appointed to audit the financial documents of the company. In case of a company is primarily a financial audit where the auditor is required to report to members in relation to the companys financial report, and adequacy of financial and statutory record keeping. According to the provision of Corporation Act 2001, the following persons can become auditor of a company CITATION Aus10 l 1033 (Commission A. S., Appointment of an auditor, 2010)
A Registered Company Auditor
A Firm
An Authorized Audit Company
In case of a proprietary company the directors can appoint the auditor in the general meeting. Under Section 327A of the Corporations Act 2001, the directors of the company have to appoint a auditor within one month of the registration of the company in the general meeting CITATION Aus10 l 1033 (Commission A. S., Appointment of an auditor, 2010).
Role of a ShareholderGenerally, the shareholders of a company are held liable for the management of the company. However, under the company statues some matters are considered as fundamental and the approval of the shareholder is required. According to corporation Act 2001, the following are some of matters which needs the approval of the shareholders CITATION COR l 1033 (CORPORATIONS ACT 2001 - SECT 1.5.5,Company directors and company secretaries)
In case of amalgamation or merger of the company
In case of sale of assets of the company substantially
In case of changes in the share capital of the company
Addition or removal of restrictions on the business of the company
Increase or decrease in the number of directors
Confirmation provided by laws
Raising of FinanceThe companies often need raise the finance through external funding in order to expand the business in different markets, for investment research and development and to keep pace with the level of competition that exists in the market. The following are some of the methods to raise the finance of the company CITATION Law17 l 1033 (Path, 2017)
Retained Earnings
Companies do make profit with the sale of a product or service and recover the cost that it has spent for its production. One of the most reliable source of rising of fund for a company is the method that can bring most earning is called as retained earnings.
Debt Capital
Company can also borrow money like individuals which can be done in term of loan though a bank or through a debt issue publicly. The debt issues are popularly known as corporate bonds which provide a authority so that a large of investors can become a creditor or lender of the company.
Equity Capital Apart from the above two methods, a company can also raise finance by sale of part of companys share which is otherwise called as equity funding. The main advantage of this type of funding is that the investors do not need payments for interests.

Conclusion and RecommendationFrom the above analysis and interpretation it can be concluded that every person associated with the company who may be director, company secretary, auditor or shareholder, they have their own importance and work for the best interest of the company. The source of funding are many, it depends on the preference of the company to choose which one is best for the business CITATION COR l 1033 (CORPORATIONS ACT 2001 - SECT 1.5.5,Company directors and company secretaries).
Question 2 Senior EmployeesMost of the employers face the complaints for harassment and discrimination. Such complaints in relation to discrimination and harassment may lead to tension in workplace, investigations of the government and many times it also causes a costly and expensive legal battle between the employer and employee. However, in case of any mishandling in the complaint unintentionally it may affect the business. To overcome such type of situation a careful strategy has to be implemented so that it can reduce the possibility of a law suit and the relation with the employee can be improved (How to Handle Discrimination and Harassment Complaints).
The Equality Act 2010 is meant for the protection of such harassment or discrimination in the workplace and this act legally protects the employees in the workplace and in the society as a whole. The aforesaid act replaced the law of discrimination single handedly. With the replacement of the previous law, the Equality Act 2010 helps to easily understand the protection in different scenarios. (Office, 2015)Everyone in Australia is protected in Workplace as the Equality Act is there to protect the people from any sort of harassment and discrimination. The Equality Act 2010 has some protected characteristics which are as follows (Office, 2015)
Age
Sex
Religion/Belief
Race
Disability
Maternity/Pregnancy
Sexual Orientation
Civil Partnership or Marriage
Gender Reassignment
However, there are some other factors on which discrimination can be made depending on the other protected characteristic. The Equality Act 2010 provides the provision of equal pay in terms of equality. This also gives a right to the work pay between man and women. This provision is applicable for permanent as well as temporary employment (Commission E. a.).
Analysis of the provide case shows that the senior employees are claiming for discrimination in pay rate. To resolve this issue the first and foremost thing is to analyze on which of the protected characteristics basis the employees are doing so. Whatever the situation may be in that case the management of the company have act tactfully to avoid a lawsuit against discrimination. However, some cases employers are allowed to pay different employees different pay rate for the same job as per their qualification experience as long as there is no breach in the laws of equality and other such as laws against discrimination indirectly (Commission E. a., 2019).
Wrongful DismissalIn law the term wrongful dismissal is also known as wrongful termination or discharge. In case of a wrongful dismissal an employees employment contract by the employer has been terminated and there is breaches of many clauses in the employment contract or a provision in the employment law. CITATION WHA l 1033 (WHAT IS WRONGFUL DISMISSAL)The Court considers the following factors for a wrongful dismissal of an employee by an employer
The total tenure of employment of the employee and the remaining tenure
Expected time period to consider an alternate employment by the employee
Prospective Pension rights or any other rights of the employee
Salary of Employee
Designation of the Employee in the Organization and its importance
The employment nature
Industry Practice and Duration of hiring process
Compensation
Remedies unlawful termination or breach of employment contract
Specific Performance
Damages caused for wrongful termination
Remuneration and wages
Injuries in relation to wrongful dismissal such as psychiatric illnesses
Loss of opportunity for further employment
Participation in bonus schemes
Unfair DismissalWhen an employee is dismissed or termination from his job in a disrespectful, unreasonable and harsh manner it is called as Unfair Dismissal. The Fair Work Commission works in respect of unfair dismissal. An employee can apply to the Fair Work Commission with 21 days from the date of such unfair dismissal. In case of any unfair dismissal, the management of the company have act tactfully to avoid a lawsuit against termination. However, some cases employers are allowed to dismiss the employees in case of misconduct or breach of employment contract rule (WHAT IS WRONGFUL DISMISSAL)s.
Problem of Program Solution LimitedA contract is an agreement legally enforceable by law between two parties. In a contract both parties are obliged to perform their respective task or promise. A breach of contract happens when one of them fails to perform the task or promise made. In that case, the non breaching party can file a law suit against the breaching party for seeking a legal relief CITATION Rem l 1033 (Remedies for a Breach of Contract).
The basic remedies for breach of contract generally include damage of money, reformation, specific performance, restitution and rescission. Analysis of the provided case of Program Solution shows that the company has made software for Prometheus which was not up to the mark as expected. When the company asked Program Solution to make necessary amendments, it asked for additional charged for repairing work due to which the contract was dismissed on the breach of contract CITATION Leg15 l 1033 (Vision, 2015).
Here, the breach on the Program Solution depends on the agreement of contract which was signed between the parties Program Solutions and Prometheus. However, as Prometheus has been claiming to be a breach of contract on the part of the company Program Solution, it can follow the below mentioned steps to file a lawsuit against Program Solution for breach of contract CITATION Law17 l 1033 (Path, 2017)Forum Selection Clause The contract may have a forum selection clause which provides that which law or court can be used in case of any dispute between the parties to a contract. This forum is basically enforceable by law.
Venue The term Venue refers to the particular court where you can file the law suit against the breaching party.
Arbitration Arbitration means the process through which both the parties to a contract and a third party come together to decide the result which is basically called a amicable settlement.
Medication Mediation means when a third party offers help to both the parties in a contract to reach a particular conclusion.
Here, the Prometheus can claim for damages from Program Solution as a result of breach of contract.
ConclusionFrom the above analysis and interpretation, it can be concluded that there can be different scenarios for wrongful dismissal and unfair termination depending upon the case. There are somay factors which have to be considered before proceeding for a law suit on the part of the employee. And for the employer it is better to act tactfully to protect the reputation of the company and be friendly with the employees to overcome such situation. There are many scenarios for a breach of contract but the remedies for the breach are same as prescribed under Corporation Act 2001 CITATION Rem l 1033 (Remedies for a Breach of Contract).
References BIBLIOGRAPHY l 1033 Breach of Employment Contract amp Wrongful Dismissal. (n.d.). Retrieved from https//www.owenhodge.com.au/ https//www.owenhodge.com.au/employment-law/breach-of-employment-contract/
Commission, A. S. (2010, October 20). Appointment of an auditor. Retrieved from https//asic.gov.au https//asic.gov.au/regulatory-resources/financial-reporting-and-audit/auditors/appointment-of-an-auditor/
Commission, A. S. (2016, September 28). Becoming a director of a company. Retrieved from https//asic.gov.au/ https//asic.gov.au/for-business/your-business/tools-and-resources-for-business-names-and-companies/asic-guide-for-small-business-directors/becoming-a-director-of-a-company/
Commission, E. a. (2019). Equal pay for equal work what the law says. Retrieved from https//www.equalityhumanrights.com/ https//www.equalityhumanrights.com/en/advice-and-guidance/equal-pay-equal-work-what-law-says
Commission, E. a. (n.d.). Your rights under the Equality Act 2010. Retrieved from https//www.equalityhumanrights.com/ https//www.equalityhumanrights.com/en/advice-and-guidance/your-rights-under-equality-act-2010
Corporations Act 2001 - Sect 1.5.5,Company directors and company secretaries. (n.d.). Retrieved from http//www5.austlii.edu.au/ http//www5.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s1.5.5.html
How to Handle Discrimination and Harassment Complaints. (n.d.). Retrieved from https//www.nolo.com https//www.nolo.com/legal-encyclopedia/guidelines-handling-discrimination-harassment-complaints-29490.html
Office, G. E. (2015, June 16). Equality Act 2010 guidance. Retrieved from https//www.gov.uk/ https//www.gov.uk/guidance/equality-act-2010-guidance
Path, L. (2017, September 1). https//lawpath.com.au. Retrieved from How Do I Add A Director to My Company https//lawpath.com.au/blog/add-director-company
Remedies for a Breach of Contract. (n.d.). Retrieved from https//www.hg.org/ https//www.hg.org/legal-articles/remedies-for-a-breach-of-contract-20711
Vision, L. (2015, May 19). 4 Types of Breach of Contract. Retrieved from https//legalvision.com.au/ https//legalvision.com.au/4-types-of-breach-of-contract/
What Is Wrongful Dismissal (n.d.). Retrieved from https//employmenttribunal.claims/ https//employmenttribunal.claims/employment-law/dismissal/wrongful-dismissal/