Allan had been employed by EW Services Pty Ltd for six years. The company, which employed 150 workers, operated an engineering workshop serving the local mining industry. Allan was employed by the company to do welding work. He worked regular overtime on weekdays. His employment was terminated because he failed to report for overtime work on the preceding Saturday. The nature of the company's business was such that, from time to time, it would be asked to provide immediate service. A delay in the provision or repair of equipment urgently required for a mining operation could cause a customer significant loss. On Thursday, 14 April, it became apparent that it would be necessary to have employees work on the following Saturday. The office manager, Robert, spoke to the individuals they needed, including Allan. He told Allan that he was required to work for four hours on the Saturday. Allan refused and failed to attend. Robert prepared a note addressed to Allan and handed it to him. The note read: “As you have on several occasions refused to work overtime we must advise that this is an official warning that you must work overtime when customers' timing dictates. Failure to comply with this notice will result in termination.” Allan then consulted a solicitor who sent a letter to the company alleging Allan had been victimized. The letter said that Allan did not accept the official warning as such overtime requirements had not been asked of other employees of the company; and neither had Allan been given any previous warning about his work performance. It also stated that the company was treating Allan disrespectfully and subjecting him to severe mental and physical stress. He was not asked to work Saturday overtime again until 27th May. Early that day, the company received an urgent order from a customer. Robert told the relevant employees that he wanted them to work tomorrow. Allan refused. Later, Robert approached Allan privately and said to him: "Allan, you need to turn up tomorrow. If you don't, you’ll be dismissed”. Allan made no reply. Upon arrival at work on the Monday morning Robert terminated Allan’s employment with immediate effect. No payment in lieu of notice was made. In his last week with the company, Allan had worked a total of 48 hours; that is, 38 standard hours, two hours regular overtime and eight hours additional overtime.
1. Is Allan able to bring a federal unfair dismissal claim?
2. Assuming Allan is able to bring such a claim, discuss whether or not his termination has been harsh, unjust or unreasonable with respect to:
(a) The substantive reason for the dismissal.
(b) The procedural fairness of the dismissal.
(Your answer must contain references to the relevant sections of the Fair Work Act 2009 (Cth).
3. Discuss the allegations of victimization with respect to the general protections provisions of the Fair Work Act 2009 (Cth).
The question belongs to Law and particularly to labor laws. This question is about Allan, a worker in an engineering workshop who was victimized and terminated from services for not taking up overtime on Saturdays. Legal remedies for Allan have been suggested in the solution.
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