HR manager fined for Fair Work Act breach
Human resources/workplace relations managers and other senior managers are exposed to pecuniary penalties if they are involved in unlawful adverse action against employees.
In a first decision on liability, Judge Karl Blake found a human resources (HR) manager liable as an accessory to an employer’s contravention of the Fair Work Act 2009 (Cth). This was because the HR manager was directly involved in the unlawful dismissal – being the very person who engaged in the unlawful conduct. In the decision on compensation and penalties, United Workers’ Union v Bervar Pty Ltd (No 2)  FedCFamC2G 251, Judge Blake ordered the HR manager to pay a $7,560 penalty to the employee.
The worker, a full-time production employee had been progressing in the company for almost five years. She had a disagreement with her manager and another colleague over changes in responsibilities. Following a performance management meeting with a production manager and the HR manager, the worker returned to her home mid-shift, without clocking off.
The HR manager telephoned the employee and she told him to speak to her husband. Judge Blake said, ‘In the course of that welfare check, [the HR manager] learned not only that [the worker] was apparently so upset she could not look after her children or speak on the phone, but also that she had allegedly been subject to bullying and harassment.’ The employee’s husband also told the HR manager she would not be returning to work and would be taking the matter to ‘Fair Work’.
The Court found:
- the HR manager assumed the husband had authority to speak for the employee
- the employee’s employment ended because the HR manager purported to accept her resignation from employment, even though she’d never spoken to the HR manager directly about it
- the HR manager terminated the employee’s employment because he was concerned she would make an application to ‘Fair Work’ and because he was keen to avoid a drawn out process, and
- in the circumstances, the employer engaged in unlawful adverse action (by accepting a purported resignation which had not occurred) for unlawful reasons.
The employee was a migrant with limited English language skills. Despite this, the HR manager was content to rely on the husband’s statements as constituting the employee’s resignation. The employee had her employment terminated for an unlawful reason (considering taking the matter to ‘Fair Work’) in circumstances where she had every reason to expect, given her employment history and her progression within the company, that her employment would continue.
The Court considered the circumstances of the case were egregious and there was a high need for specific and general deterrence – general deterrence being a warning to other employers and senior managers not to engage in such conduct. The Court said it cannot condone an employer simply assuming an employee has resigned without speaking to the employee, just relying on what the employee’s husband says. Judge Blake stated, ‘It is difficult to think in the modern age of any circumstances in which a wife can be assumed to agree with what her husband says.’
In addition to the penalty imposed on the HR manager, the Court ordered the employer to pay the employee $47,834.26 as compensation for economic loss and $9,000 as general damages. The Court also ordered the employer to pay a penalty of $37,800.
This case provides important lessons for employers. First, an employer should not simply rely on representations by an employee’s family member about the employee’s employment, unless the employee has expressly authorised the family member to speak on their behalf (and even then, the employer should exercise caution). Second, employers must not take adverse action because an employee has made bullying and harassment allegations or to avoid an employee commencing legal proceedings.
The case also serves as a timely reminder to HR managers, workplace relations managers and senior managers of businesses that they can be held personally liable for contraventions of the Fair Work Act if they are involved in the contraventions. For complex and high-risk circumstances such as this case, it would be prudent for HR managers to seek advice from employment lawyers before accepting the purported resignation of an employee.
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