Resources: Blogs

Taking it personally

Blogs
|

HR Manager fined $7,600 for accessorial liability in adverse action against employee

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.  

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

Employer’s withdrawal of role constituted dismissal from employment

Late withdrawal

For most employers, casual employment is favoured because of the flexibility it provides – employees are employed as required and have no guarantee of ongoing employment. This flexibility however does not mean that casual employees are not protected from adverse action.

Read more...

Redundancies and the skills matrix

The Matrix is a system, Neo

When implementing redundancies, it is critical that the process for selecting employees for redundancy is a transparent and objective one. A skills matrix can assist employers in this regard by creating clear and objective criteria against which employees are to be assessed.

Read more...

Underpaying employer ordered to pay $475,200 in penalties

Pecuniary penalties no longer a matter of degrees

The Federal Court of Australia has issued one of its first penalty decisions since the High Court of Australia’s decision earlier this year of Australian Building and Construction Commissioner v Pattinson [2022] HCA 13.

Read more...

Commission finds employee’s flexible working request to work entirely from home was not reasonable

The worst has now passed

One of the many changes to the Fair Work Act 2009 (Cth) introduced this year include the Fair Work Commission’s new powers to deal with disputes relating to requests for flexible working arrangements.

Read more...

Remote work environment risks and considerations

Barking up a broad tree

Work from home arrangements have become the “new normal” across many workplaces since the COVID-19 pandemic.

Read more...

Superannuation obligations for independent contractors

Supercharged

A recent decision of the Federal Court of Australia – Full Court has provided some clarity to employers in relation to when the obligation to pay superannuation will or will not arise.

Read more...

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.

Sign up to receive the latest industry updates with commentary from the Workplace Law team direct to your inbox.