The Fair Work Act 2009 (Cth) (FW Act) contains provisions which make it possible for individuals to be found accessorily liable for their involvement in a contravention of a workplace law. In particular, section 550 of the FW Act provides that a person “involved in” a contravention will be taken to have contravened that provision themselves.
It is for this reason that individuals who are most often involved in managing employee relations, such as directors, HR managers, accountants and payroll, are particularly aware of an employer’s obligations to its employees under the FW Act.
Take, for example, the recent decision of the Federal Circuit and Family Court of Australia (Division 2) (the Court) in United Workers' Union v Bervar Pty Ltd [2022] FedCFamC2G 418, where the Court was tasked with determining whether a HR manager was accessorily liable for an employer’s adverse action against an employee.
The employee worked as a Production Worker for Bervar Pty Ltd (the Employer), a ready-made pizza production business.
The employee claimed that between March 2020 and May 2020, she had been subjected to aggressive and racist remarks by her Production Manager during the course of discussions about her availability for work and also in a meeting about her work performance. The Employer denied that any such comments were made during those discussions or meetings.
The Court heard that, shortly after one of the meetings in May 2020, the employee became upset and left a shift early. The HR Manager subsequently called the employee to enquire about her welfare. The employee gave the phone to her husband who told the HR Manager that the employee had been bullied and harassed at work. When the HR Manager asked if the employee would be returning to work, her husband responded by saying “she’s never coming back” and that she will be taking the matter to “Fair Work”.
The HR Manager took this to mean that the employee was resigning from her employment and sent a letter to her soon after accepting her resignation.
A few days later, the employee sent an email to the HR Manager asking for confirmation that she remained employed by the Employer. The HR Manager responded to this email confirming that her resignation had been accepted and she was no longer employed.
The United Workers’ Union (Union) subsequently brought an action on behalf of the employee claiming that, amongst other things, the Employer and HR Manager took adverse action against the employee by dismissing her because she had exercised her workplace right of initiating, or proposing to initiate, proceedings under a workplace law.
The Court found that it was in fact the Employer that had terminated the employee’s employment, rejecting the Employer and HR Manager’s submission that the employee had resigned by way of her husband. The Court found that it was wrong for the HR Manager to assume that the husband had the authority to speak on the employee’s behalf and to take no additional steps to verify the existence of such authority.
It was the Court’s view that the HR Manager was concerned that the employee would initiate proceedings against the Employer and therefore took the first opportunity to remove her from the business.
Accordingly, the Court found that the Employer had taken adverse action against the employee by dismissing her from employment because she proposed to exercise a workplace right, being her ability to initiate proceedings under a workplace law pursuant to s 341(1)(b) of the FW Act.
The Court was also very critical of the HR Manager’s actions following the telephone conversation in May 2020. The Court found that despite the HR Manager initiating a call to undertake a welfare check, he did very little to genuinely enquire about the employee’s welfare, especially after learning that she was facing alleged bullying and harassment.
For example, the Court stated that the HR Manager took no steps to initiate any form of investigation into the employee’s allegations, speak to her directly, invite her to put her allegations in writing or speak to any other employee about the events that allegedly occurred.
The Court found the HR Manager’s actions to be “utterly surprising”, stating that:
“[The HR Manager] is an experienced and qualified human resource professional. While he may have the qualifications and experience, it is apparent that he did not do any of the basic things, or make any basic inquiries, an experienced human resource professional might be expected to in the circumstances which confronted him”.
In considering the above, the Court was satisfied that the HR Manager was “involved” in the Employer’s adverse action in dismissing the employee from her employment because she had a workplace right and that he should be held accessorily liable for the contravention.
The Court therefore upheld the adverse action claims against the Employer and the HR Manager and invited further submissions on appropriate penalties and compensation.
It is important for employers to bear in mind that the FW Act contains provisions which make it possible for individuals to be found accessorily liable for contraventions of the FW Act. As seen in this decision, the Court will consider an individual’s position within an employer’s business, including their qualifications and experience, in determining whether they should be held accessorily liable for contraventions of the FW Act.
Individuals who regularly deal with employees , such as directors, HR Managers and payroll, should be particularly mindful of an employer’s obligations under the FW Act to ensure that they themselves are not held liable for any breaches.
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