INTRODUCTION TO BUSINESS LAW, SPRING 2012

ASSIGNMENT (Assessment 2)

Part A: Short answer questions (15 marks)

Imagine you are about to start up a small business. There are a range of decisions you will need to make, for legal reasons, at certain steps of the set-up process. The following questions ask you about several decisions you would usually need to make if you were setting up a real business. While you are encouraged to think of your own idea for a business, and to be a bit creative here,this exercise does not require anything like a complex business plan or any financials. Importantly, the business does not need to be, and in fact should not be, a complex business or a large enterprise for the purposes of this assignment (this will not get more marks). It should however be tasteful / not offensive in nature. This exercise is intended to focus your attention on specific decisions that have a legal aspect, and to explain your reasoning in making those decisions to us in a clear and business-like manner. Do not simply copy the business described below in Part B.

Some suggestions that may be of help (and which you are quite entitled to use as a starting point) include:

  • a retail shop (perhaps selling goods that relate to a hobby, sport or pass-time that interests you);
  • a restaurant or cafe;
  • a small business of a type you have some personal experience working in;

or

  • an online business selling consumer goods through a website.

Questions

  1. Briefly describe the small business you would like to start, (outline facts such as what type of business it is, what it sells, who might work there, where it is, etc). (2 marks – approx 120 words)
  2. What type of business structure do you think would be the best one to adopt for the particular type of business you have described in question 1, above? (1 mark – suggest <10 words)
  3. Explain why the business structure is the best one for this business. (3 marks – approx 150 words)
  4. Write down a name you would like to give your business. (1 mark – suggest <10 words)
  5. Could you register the name as a trade mark? Explain why or why not. (3 marks – approx 150 words)
  6. What other registrations should you consider that involve the name of your business? What problems might you run into at this point? (3 marks – approx 150 words)
  7. Briefly describe two other legal issues or areas that you would expect to have an impact on the type of business you are setting up (as described in question 1, above). (2 marks – approx 120 words)

Part B: Extended response question: Letter to a lawyer (15 marks)

Scenario

In September 2011, Debbie commenced employment with Real Endeavours Pty Ltd and worked as a sales agent in a call centre with a male manager. In March 2012 she was promoted to the claims department.

In May 2012, Tom, a colleague who Debbie had sat beside in the call centre, made a complaint about harassment and intimidation by the call centre manager. Debbie was asked by Tom to come forward and provide supporting information. Debbie also lodged a formal complaint against the same call centre manager citing harassment and inappropriate behaviour.

You work in the Human Resources Division within Real Endeavours Pty Ltd. You decide that these complaints need to be investigated. During the course of the investigation a number of staff, including all of the persons whom Debbie suggested could support her allegationsare interviewed. The emails of several staff are searched for evidence of harassment. In the search youfindthat several staff, including Debbie, had sent emails which attached pornographic photographs. (The company has an Electronic Use and Information Security policy which stated: “Employees must not download, retrieve or send sexually explicit, harassing, racist or otherwise discriminatory or illegal material from the Internet or email at any time. This sort of behaviour is considered to be a serious misconduct, and may result in the instant dismissal of the employee(s) involved.”)

Emails from Debbie to others arealsochecked during this investigation. One such email appeared to indicate that she had some form of personal relationship with Tom; and another was to the Call Centre Manager, which appeared to express appreciation for his constant flirting.

When Debbieisquestioned about her relationship with Tom, she deniesthat she has any personal relationship with Tom beyond that of a normal working relationship. Debbiefurther states that she had forwarded the pornographic email to her manager (at his request), and to a female colleague (who had asked why she looked so shocked). Debbie did not reveal that she had also sent the pornographic email to two members of her family and a female person who did not work for Real Endeavours Pty Ltd.

You have come to the conclusion that Debbie’s complaint cannot be substantiated.

One of the employees you interviewed now brings to your attention a blog that Debbie recently wrote on a social-networking webpage. The blog can be accessed by a Google search with the words‘Debbie’ and ‘harassment’. The following wording was on a page alongside a photograph of Debbie and her name:

“Friday, August 3, 2012

I believe that you should always defend the truth, and find the courage to stand up for what is right. There is a place that shall remain unnamed that I thought was based on the same principles.

I have just been thru an investigation that in the end turned the victim into the perpetrator. The investigation tampered with evidence and was biased.

This man was sexually advancing himself on his colleagues. When there were a couple of people that were courageous enough to come forward their statements were dismissed because they were deemed as good friends.

Where is the concern of the Senior Management that is meant to be protecting the workers from harassment, intimidation, bullying and sexual advances that were unwanted, uninvited and unsolicited?

At the end of the investigation, I was told that it was all unsubstantiated. That he has witnesses and people within the workplace that said I instigated it all. I wanted it. Not one signed statement on his behalf. But two signed statements on my behalf, one from the employee who sat next to me every day for 5 months. He was conveniently sacked the day they were meant to deliver their results and because he was sacked his statement was not credible.

What more can I do?

Debbie”

You write a letter to Debbie requesting her to remove the blog and to cease publishing it (and any other material that has the real potential to damage the reputation of the Company) in the public arena. Debbie replies that she intended it to be only available to ‘friends’ and that the blog was considered the gentlest and safest way to attempt to bring other aggrieved colleagues forward who have otherwise been too scared about losing their jobs to come forward. Debbie has not removed it.

You need to decide what the best course of action for Real Endeavours Pty Ltd to take, within the law, in dealing with Debbie and then you are to ‘run it past a lawyer’. Write a letter to a lawyer practising in a suitable area of law along the following lines:

  • introduce yourself;
  • explain the fact situation (the legally relevant facts);
  • explain what Real Endeavours Pty Ltd wants to do and how you think Real Endeavours Pty Ltd is entitled to act, within the law (i.e., the course of action you have worked out is the best one for Real Endeavours Pty Ltd); and
  • ask the lawyer for advice about the legality of your plans and about any other legal concerns you have arising from these facts.

Suitable research references/sources to get you started:

  • The prescribed textbook – James, N 2011 Business Law, 2ndedn, John Wiley & Sons.
  • Online Modules on vUWS.
  • Gibson, A & Fraser, D 2011, Business law, 5th edn, Pearson.
  • Turner, CF 2010, Australian commercial law, 28th edn, Thomson Reuters.
  • Government websites such as, e.g.,
  • Other internet resources may be used, provided they are reliable and reputable. Take care that internet sources are on Australian law.
  • Other recent textbooks on Business Law (consult the Library catalogue).

Notes/advice: For the purposes of this letter you may invent the name of a lawyer or firm, ideally one that indicates the invented lawyer or firm is practising in the right area oflaw for this problem.

Referencing: Wherever you have taken an idea from another source, reference the source in a footnote to show support for the points you are making, and also to demonstrate the amount of research you have done.

Any direct quotes (words that are copied from another source and are not your own words) must be marked with quote marks, and the source must be referenced in a footnote.

Do not use endnotes for this assignment, only footnotes.

Citation style:Harvard style as per the BusinessSchool style requirements is acceptable for this assignment. However, if you are including references to cases or legislation, please use the following styles (the Acts and cases themselves are not necessarily relevant, they are only examples – note where the italics are and also the spacing and absence of punctuation):

Legislation: Copyright Act 1968 (Cth) s 36

Case: Grant v Commissioner of Patents (2006) 154 FCR 62; [2006] FCAFC 120

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