Resources: Blog

HR consultant and supervisor found accessorily liable for breach of FW Act


All together now

An external HR consultant and a supervisor have been found accessorily liable for contraventions of the Fair Work Act 2009 (Cth) (FW Act) after they were involved in the dismissal of an employee who raised a potential award non-compliance issue.

An external HR consultant and a supervisor have been found accessorily liable for contraventions of the Fair Work Act 2009 (Cth) (FW Act) after they were involved in the dismissal of an employee who raised a potential award non-compliance issue (Myers v Arenco Holdings Pty Ltd & Ors [2019] FCCA 3077).

The employee was a yoga instructor at a studio where her duties included administrative tasks as well as teaching yoga classes. The employee had been in her position for three months when her employment was terminated.

The employee claimed that she was dismissed because she suggested to her supervisor that she was not being paid in accordance with the Fitness Industry Award 2010 (the Award). The employee gave evidence to the court that, shortly before her dismissal, she had participated in a meeting with the yoga studio’s coordinator (who was her supervisor) and the consultant about her hours of work, specifically in relation to managing her part-time hours and her responsibilities as a parent. The employee claimed that the outcome of the meeting was a plan for her to develop an ideal roster for hours that would meet everyone’s needs.

The employee said that in preparing the proposed roster, she referred to the Award and felt that there were certain provisions relating to overtime and broken shifts that were likely not being adhered to by her employer. She texted her supervisor, alerting her to this potential award non-compliance issue.

The next day, the employee attended the yoga studio where she had a conversation with her supervisor. The employee alleged that during their conversation, the supervisor dismissed the employee and proposed re-engaging her as a contractor.

The next day, the employee emailed the consultant about the matter, requesting clarification and further information about the proposal of a contractor arrangement.

The consultant responded confirming that the employee’s employment was terminated, and that she would forward proposed terms of a new arrangement in a separate email.

Shortly after, the employee commenced proceedings against her employer, the supervisor and the consultant claiming that adverse action was unlawfully taken against her because she made a complaint/enquiry about her employment.

In response to the employee’s contentions, the employer, the supervisor and the consultant argued that the employee was not dismissed because she raised potential award non-compliance but because of ongoing poor performance.

The supervisor and the consultant claimed that, from almost the beginning of her employment, the employee had not performed her administrative duties to the standard expected of her. They argued that the supervisor had raised performance issues with the employee in the past and the employee had failed to improve.

However, there was no evidence to support the assertions of substandard performance. In fact, there the employee was able to produce evidence to the contrary including a number of text messages from the supervisor to the employee praising her performance. In those text messages, the supervisor said:

  • “Thank you for being amazing!!"
  • “Thank you for being my earth sign angel” (a reference to the employee being hard working because her star sign was Capricorn, an “earth sign”)
  • “Amazing!! Thank you so much. Good job on figuring out the eftpos refund as well”
  • “Thank you for your great work by the way!”

The court rejected the argument that the employee had been dismissed for performance reasons, noting that there was no evidence of any kind to support such a finding.

The court found that,

the termination of [the employee’s] employment was adverse action taken against [the employee] because she sent, at 10.17 am, the 3 July 2018 text message to [the supervisor] asserting the Fitness Industry Award had not been complied with. That was a prohibited reason for the taking of adverse action against [the employee]. The respondents have not proven otherwise. [at 37]

The court also found that the decision to dismiss the employee was made by the consultant in consultation with the supervisor and they were both, therefore, involved in committing adverse action against the employee in contravention of the FW Act. The court said,

Together, [the supervisor] and [the consultant] were each ‘involved in’ the said contravention and are accordingly accessorily liable for such contravention pursuant to the provisions of s. 550(1) of the FWA. The Court finds that each of [the supervisor] and [the consultant] sought to portray the termination of [the employee’s] employment as based on work performance issues, when in fact it was due to [the employee] pointing out that she had been underpaid, and that the Fitness Industry Award had not been followed. They were motivated by a desire to avoid the financial consequences which would be suffered by the first respondent if it was required to pay to [the employee] her due entitlements. [at 47]

The court found that the employer, the consultant and the supervisor were all liable for contraventions of the FW Act and would be ordered to pay penalties (to be determined). The court also found that the employee was entitled to compensation for hurt and distress as well as financial loss (also to be determined).

Lesson for employers and others

Under s550 of the FW Act, individuals can be found accessorily liable for contraventions of the FW Act if they are “involved in” those contraventions.

In this case, the individuals named as persons “involved in” the contravention included a supervisor (not a manager) and a HR consultant, who was not an employee but acted on behalf of the employer.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

Similar articles

Changes to the Fair Work Act and Sex Discrimination Act to commence shortly


On 2 September 2021, the Federal Parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill).


FWC rejects Applicants’ claim to access investigation documents


The Fair Work Commission (FWC) has a broad power under section 590 of the Fair Work Act 2009 (Cth) (FW Act) to “inform itself in relation to any manner before it in such manner as it considers appropriate”. Under this general power, the FWC may inform itself by requiring the production of documents or records to the FWC (such as all documents or records relating to a dismissal process).


Court finds multiple breaches of general protections provisions

Direction needed

The Federal Circuit Court of Australia (the Court) recently ruled on an application brought by an employee alleging that three respondents had engaged in breaches of the Fair Work Act 2009 (Cth) (FW Act), including sham contracting and dismissing the employee because she was pregnant.


Commission orders employer to pay compensation as a result of its procedurally unfair disciplinary process

Procedurally disastrous

When investigating allegations of misconduct against an employee in the workplace, employers must ensure that any ensuing disciplinary process is kept distinct from and separate to from the investigation.


The importance of WHS refresher training

Not a “one and done” thing

It is an expected and necessary part of work health and safety (WHS) plans that all new workers receive relevant WHS training.


Casual Terms Award Review 2021


In March 2021, the casual employment amendments to the Fair Work Act 2009 (Cth) (FW Act) introduced a new statutory definition of “casual employee” and an entitlement to casual conversion as one of the National Employment Standards (NES).


Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.