You are asked to write a letter of demand regarding the termination of your client’s employment. The termination occurred abruptly, with the employer deciding that, because the client is gay, it was impossible that he had a genuine illness on the Monday following the Sydney Mardi Gras party. There were no previous warnings issued to your client, and he earned $90,000 a year plus superannuation. He was first hired in 2015.**
As you write the letter, reflect on the following areas:
– What was wrong about the termination?
– What options does your client have now?
– How much in terms of damages do you expect he will be able to achieve if ultimately successful in litigation?
– Will there be any other incentives for your client to litigate?
– What would your client be prepared to settle for, if it is going to get a fast result?
The correct answer and explanation is:
Here is the drafted Letter of Demand:
Explanation
The termination of the client’s employment was unlawful for multiple reasons. Firstly, it was based on discrimination against his sexual orientation, violating the Fair Work Act 2009 (Cth) and state anti-discrimination laws. There was no valid performance-based reason, no prior warnings, and the decision was based on an assumption rather than evidence.
Now, the client has multiple legal options. He can file an unfair dismissal claim with the Fair Work Commission (FWC) within 21 days, seek damages through the Australian Human Rights Commission, or initiate a general protections claim. Litigation could lead to reinstatement, financial compensation for lost wages and superannuation, and damages for distress and reputational harm.
If successful, he may recover $90,000 per annum plus superannuation for lost wages over a reasonable period (e.g., six months to one year), emotional distress damages (often $10,000–$50,000), and potential civil penalties against the employer.
Beyond