Misleading Advertising and Deceptive Conduct
The question is in regards to whether by conducting an advertisement which the business has not done as advertised forms a wrong as per the provisions of the law.
Regarding the provisions of the Australian Consumer law as provided under the 2010 Competition and Consumer Act, Schedule 2, incorrect or deceptive representations are prohibited by providing that: its illegal for a company to come up with statements in business or trade that are; false or deceptive& those likely to give the wrong impression or mislead. They include: advertisements, promotions, price quotations, statements & any representations prepared by an individual.
Following the facts of this situation, the business owner is in breach of the provisions of the consumers laws since, despite the fact that she has put up the big board’s of David Beckham on the wall the wordings used in the advertisement are misleading to the customers since by saying “come and have a drink with David Beckham” it creates an impression to the customers that David will be there & therefore many will come with an expectation of seeing his presence or just to have a glimpse of him considering his prominent status. Therefore in this instance, the owner is liable for misleading her customers to believe that indeed they would be able to enjoy with Beckham & can be liable upon suit to compensate the customers or pay penalties as was in the Optus Telecommunication Company Case.
Conclusion:
As illustrated therefore, the business owner has contravened the provisions of the act and is liable incase legal proceedings are brought against her.
The question looks into the conduct of the business owner i.e. if she/he is in breach by continuing to advertise a product she isn’t able to provide at the moment because of lacking some particular ingredients.
As per the provisions of the Act a business is not to conduct itself in any way that can create a false impression to the public in regards to its nature, production process, characteristics or quality of its services & goods. Further, it specifies acts like ‘bait advertising’ which takes place when an individual advertises any goods or services in a business specifying the price when there exist reasonable factors to believe that they won’t be able to avail the advertised products. What entails ‘reasonable supply’ largely depends on various factors such as type of goods &what the advertisement says.
Breach of Provisions of the Australian Consumer Law
By referring to the circumstance, the continued advertisement was in regards to a special kind of cocktail that would be offered every Friday night. As stated, the wordings can easily make one believe that the cocktail is available any Friday such a customer visits the place therefore constituting a misleading statement. Also the advertisement qualifies as a ‘bait advertisement’ since in continuing to advertise, the owner was much aware that due to lack of some ingredients it was not able to offer the drink as advertised and therefore forming part of ‘ reasonable factors to believe that they won’t be able to supply the said product.’ A case in point is that of Six Harvey Norman Franchises located in Perth where every partner paid for a breach notice for advertising the Kodak ‘playsport’ pocket video camera in a catalogue circulated across Perth when they didn’t store the camera.
Conclusion:
In conclusion, the business owner is in contravention with the provisions of the laws for misleading the public by engaging in bait advertisements as prohibited by that Act & therefore is liable to any provided penalties.
The question seeks to answer if the owner of ‘Pop up Sports’ by using the name ‘Beckham Balls’ in contrast with that of a nearby restaurant ‘Becks Special Meatballs’ has breached the Act in terms of misleading and deceptive conduct.
Following the provisions of the Act, any practice of misleading and deceptive behavior is prohibited in business. In addition, the act considers unfair practices which include: any such practice in relation to the distribution of goods and services; failure to give out gifts & rewards as provided; bait advertising & receiving payment for goods not supplied. Further, in regards to misleading behavior/conduct it includes making use of a name that is closely related to other commonly known brand or using a logo made in Australia when the good was produced overseas.
In reference to the facts, ‘Pop up Star’ had just been opened and therefore it has not existed for long enough to claim that all along it had been using the name ‘Beckham Balls’ unlike the other restaurant which might have been in existence for long. Other illustrations as per the common law include: the Edwards application (1945) where application for a product called Jardox was refused as initially one called Jardex existed.
Conclusion:
Following the above illustrations, the owners of the other nearby restaurant have enough evidence both by statute and as per the common law to be able to convince the court or the consumer commission of the breach practices the owner of pop up star has engaged in and therefore be able to hold the person in breach of the established laws.
Handling Employees
Handling Employees
1
The question seeks to answer if Sarah is an employee of the sports bar and if so what are the consequences Nick and his business partner stand to face?
As per the Australian Labor laws, there exist certain criteria to help one establish if a worker qualifies to be regarded as an employee. The factors applied include: if the worker supplies personal tools & equipment; if the workers faces financial risk while providing the services; if he/she is free to work in other places; if such a person is able to delegate work to other people; if the worker receives wages & the extent to which the worker is involved into the alleged employers trade practices. In regards to the above factors, except the last two one can term such a person as an independent contractor while a person being paid wages & is much involved in the employers commercial activities is most likely to be taken as an employee.
In regards to the employer’s duty to his/her employees, the occupational health and safety act provides that: an employer must that all measures or reasonable care as per common law to grant the employees health, safety & welfare during the life time at work of place.
Therefore, in applying the established rules Sarah is to be considered an employee since by looking at the factors employed in establishing whether a worker is an employee of not she does not really fall in the first two. On the other hand, one can conclude that Sarah is an employee as she is not allowed to work in other places. This can be inferred from the facts since being a student she gets to work on one day in a week when the session is on and three days per week when on holiday & only when she is free. In addition to that, Sarah gets to receive $150.0 for work done which qualifies her as an employee.
Further, considering the fact that the laws define a casual worker as an employee who is not eligible to be paid a yearly or sick leave qualifies Sarah as an employee. On the other hand, since it’s clear that Sarah is an employee Nick & his partner are liable to cater for Sarah’s medical bill as she sustained the injury in the course of duty unless if upon suit they will be able to establish that they took all reasonable steps and care to ensure that the workers and customers could not suffer any harm while at the sports bar.
Conclusion:
In conclusion therefore, Sarah as illustrated is an employee and therefore nick and his partner are liable to cater for any cost in regards to her medical needs and can also bear cost of suit if Sarah decides to commence one for compensation purposes.
2.
The question regards what’s the appropriate dress code for Jully when at work & if she refuses to change can terminating her contract be legal?
The laws guiding dress code generally provide that: an employee are to dress properly & in a way that preserves respect; maintains credibility & validates the good status of the department. They are also required to consider the circumstances of their work and not put on revealing clothes such as those showing bare midriffs, strapless tops or dresses, or clothes that may be considered as suggestive/or offensive.
In reference to this circumstance, Jully as an employee is required to stick to the appropriate dress code as provided by the law i.e. one which is does not look suggestive or revealing like the skirts and tops she is used to putting on. This is so as she is supposed to maintain the reputation of her work place & also as an employee she has accepted to work as per the laws of the employment which include the dress code she is going against and therefore for breaching the established contract. In this regard, since she has received a caution to change her dress code and therefore stick to the appropriate one, the employer is justified in terminating her employment if she continues to wear the revealing clothes she is using as she will be in breach of the contract of employment which includes the dress code & therefore the employer will be acting within his/her legal rights if he/she terminates the employment.
Conclusion:
In conclusion therefore, an employer can end the employment if Jully continues to wear such revealing clothes as she will be going against the employment agreement.
3.
The question is in regards to the duty of confidentiality an employee owes an employer & if upon breach terminating her contract is legal?
The established principle in regards to the duty of confidentiality is that: an employee regardless of whether he/she has signed any written confidential contract is not supposed to expose or reveal any information that is critical to ones business, more so if it can result to a loss. Also, an employer in this situation can terminate the contract of employment.
Jully by revealing the secrecy information in regards to the recipes used at Star Bar breached the contract of confidentially between her and her employee and therefore the employer will not be in breach of any contract if she/he ends her employment contract as the employer has incurred some losses due to the reduction of customers in number.
Also the employer is justified in terminating the employment even in instances where an employment contract exist as going against the duty of confidentiality forms part of breaching the employment contract & therefore under all circumstances the employer will be acting within her/his legal rights to stop one from working for him if one has breached employers confidentiality.
Conclusion:
Therefore, as illustrated, the employer can terminate ones employment upon breach of duty of confidentiality.
4.
The question is in regards to suggestive sex comments at work, & if the business owner by failing to take action against Sarah implied gender discrimination against Richard his co-worker.
The issue can be brought under sexual harassment conduct which refers to sexual conduct, like unwelcomed advances, request or favors that a reasonable person can believe it will make one feel offended or intimidated. It can be physical, verbal or direct and indirect conduct. Such behavior is prohibited in places of work & any person displaying such behavior is liable for his conduct.
Further, in Australia such behavior is considered as discriminatory and criminal as provided by Equal Treatment Act for the Private Sector. Under the provisions an employer is to have knowledge of sexual harassment laws and ensure all workers access such policies since when such an occurrence takes place the employer is to prove that he/she took all reasonable steps to prevent sexual harassment.
In this instance it’s clear that Sarah’s behavior towards Richard constitute a sexual harassment since it’s something she did from time to time unlike in an instance where she was just appreciating Richard which she could have said it once. Also considering that Richard was not comfortable with the comments holds Sarah liable for sexual harassment.
On the other hand, the employer has discriminated against Richard since, when the employer got the report about Sarah conduct towards Richard; the employer contemplated upon firing him as a way of ignoring his complains & further asked Richard not to take it that serious & learn how to handle a joke. This is a clear demonstration of the employer discriminating upon the employee and failing to take adequate steps to ensure that Sarah stops using such suggestive terms towards Richard. Therefore, if the equal commissioner looks into the conduct of nick & his partner in addressing the sexual harassment issue, there is a high chance to hold them liable for permitting such conduct to take place & also being liable for promoting discrimination in the work place. (Equal Treatment Act)
Conclusion:
Therefore, nick & his partner are liable for discrimination in regards to sexual harassment at their place of work.
References:
Beatty, J.F., Samuelson, S.S. and Abril, P.S., 2018. ‘Business law and the legal environment’ (2018) 20(1) Cengage Learning 39, 40-63.
Howells, G. and Ramsay, I. eds., ‘Handbook of research on international consumer law’ (2018) 78(15) Edward Elgar Publishing 70, 45-48.
Smith, R.,. ‘Crime in the digital age: Controlling telecommunications and cyberspace illegalities’ (2018) 103 Routledge 109, 67-69.
Forsyth, P. ‘Competition versus Predation in aviation markets: a survey of experience in North America, Europe and Australia’ (2018) Routledge.
Bitman, F.F., Samuelson, S.S. and Abril, P.S., ‘Essentials of Business Law’ (2018) 220(57) Cengage Learning 89, 501-557.
Taylor, M. ‘Wrestling with Giants-A Critical Account of Supermarket Power and Competition Law in Australia and the United Kingdom’ (2018) 45(3).
Case laws
JENNY YOO COLLECTION, INC. v. ESSENCE OF AUSTRALIA, (D. Kan. Aug. 7, 2018) INC., No. 17-2666-JAR-GLR.
INTERNATIONAL LEISURE PRODUCTS, INC. v. SUNNYLIFE AUSTRALIA, (S.D.N.Y. Mar. 12, 2018). No. 16-cv-6215 (NSR).
TNA AUSTRALIA PTY LIMITED v. PPM TECHNOLOGIES, LLC, (N.D. Tex. Apr. 19, 2018). No. 3: 17-cv-642-M.
Matson v. MIPRO US, INC., (D. Minn. Jan. 8, 2018). No. 17-cv-4571 (JNE/LIB).
JTS TRADING LTD. v. AFIN ASESORES, (Sup. Ct. 2018). 2018 N.Y. Slip Op 32286.
GEEK ESSENTIALS, LLC v. SHERMAN CARTER PTY LTD., (E.D. Mo. Feb. 9, 2018). No. 4: 17CV2853JCH.
Legislation
Competition and Consumer Act, Schedule 2 (2010)
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