Last year, the Federal Circuit and Family Court of Australia found a HR Manager to be accessorily liable for his involvement in an employer’s unlawful adverse action against an employee after she proposed to exercise a workplace right, being her ability to initiate proceedings under a workplace law.
Last year, the Federal Circuit and Family Court of Australia (the Court) found a HR Manager to be accessorily liable for his involvement in an employer’s unlawful adverse action against an employee after she proposed to exercise a workplace right, being her ability to initiate proceedings under a workplace law.
In Supreme Failure: Court finds HR Manager accessorily liable for adverse action claim, we reported that in the decision of United Workers' Union v Bervar Pty Ltd [2022] FedCFamC2G 418 the Court found that the HR Manager made the decision to dismiss an employee after speaking to her husband who stated that his wife would not be returning to work and would be taking her claims of bullying and harassment to “Fair Work”.
The Court was highly critical of the HR Manager’s involvement in the employee’s dismissal, finding that he:
- incorrectly assumed that the employee’s husband had the authority to speak on her behalf;
- was concerned that the employee would initiate proceedings against the employer and therefore took the first opportunity to remove her from the business; and
- failed to undertake the basic requirements expected of a person with his level of experience and qualifications, such as verifying the existence of the husband’s authority and genuinely enquiring as to the employee’s welfare after learning that she wished to make claims of bullying and harassment.
In United Workers' Union v Bervar Pty Ltd (No 2) [2023] FedCFamC2G 251, the Court was required to determine the appropriate penalty to be imposed on the employer for its adverse action and the HR Manager for his direct involvement in the dismissal.
In considering the amount of compensation to be awarded to the employee, the Court was satisfied that there was a causal connection between the employee’s dismissal and her subsequent loss of income. The Court stated that it was likely that the employee would have remained employed for some time if not for the employer’s adverse action given that she was a highly valued employee of four years with a clean disciplinary record.
The Court also accepted that the employee was “distressed and humiliated” by the dismissal, especially in circumstances where she was not consulted or afforded an opportunity to speak to the HR Manager directly about the end of her employment. The Court found that instead, the HR Manager incorrectly assumed that the employee’s husband could speak for her, stating at [41] that:
It is difficult to think in the modern age of anything more humiliating, or destructive of the self-confidence, than for a female employee with low self-confidence to have her employment ended by an employer assuming a husband has an authority to determine contractual relations for his wife.
The Court considered the stress, humiliation and anxiety caused by the dismissal would prevent the employee from pursuing new employment in the months following the dismissal.
The Court ordered that the employer pay to the employee $47,834.26 for economic loss (being 12 months’ pay) and $9,000 in general damages for the hurt, humiliation and distress caused by the dismissal.
Turning then to the pecuniary penalties to be imposed, the Court considered the circumstances of the case to be serious and warranted both specific and general deterrence.
In relation to specific deterrence, the Court had regard to the fact that both the HR Manager and the employer had not demonstrated any remorse or contrition for the dismissal of the employee.
As for general deterrence, the Court considered the circumstances of the case to be “somewhat egregious” given that the employee was a vulnerable worker who had limited English speaking skills and who was not afforded basic procedural fairness, such as the opportunity to speak to her own employer about her own dismissal. The Court stated that it would not condone such conduct and there was a need to impose penalties that would deter others from engaging in the same.
For the reasons set out above, the Court ordered the employer pay a penalty of $37,800 and the HR Manager pay a separate penalty of $7,560.
Lessons for employers
Those holding human resources, workplace relations or senior management positions must keep in mind that they may be found to be accessorily liable for their involvement in the employer’s adverse action. As you can see from this matter, pecuniary penalties may be imposed where a person in a human resources or similar role is involved in the employer’s contravention.
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