In United Workers’ Union v Bervar Pty Ltd [2022] FedCFamC2G 418, the Federal Circuit and Family Court of Australia (‘the court’) determined that a HR Manager was personally liable for his direct involvement in the Employer’s adverse action against an employee. The HR Manager was also ordered to pay a $7,560 penalty, in the more recent decision on appropriate penalties and compensation, United Workers’ Union v Bervar Pty Ltd (No 2) [2023] FedCFamC2G 251.
Background
The employee worked as a production worker at a ready-made pizza production company called Bervar (‘the Employer’). She was called into a performance meeting with the HR Manager and Production Manager on 6 May 2020, following disagreements over changes in responsibilities.
The employee alleged that she was subjected to threatening and racist remarks from the Production Manager during the conversation. While the court ultimately made no such finding, [1] it held that the employee was nevertheless left feeling distressed. She was summoned to a serious meeting with management without notice, and with no one present in the meeting to support her. These factors, coupled with the employee’s sensitivity and limited English skills, exacerbated her feelings of distress.[2]
Following the meeting, the employee left work in the middle of her shift without clocking off. When the HR Manager called to conduct a ‘welfare check’, the employee gave the phone to her husband who stated that his wife was ‘never coming back’ and that she would be taking the matter to ‘Fair Work’. The employee later received a letter accepting her resignation and an email from the HR Manager confirming that she was no longer employed at Bervar.
Relevant Legislation: Sections 340 and 550 of the Fair Work Act 2009
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Breach of section 340
The court rejected the submission that the employee had resigned through her husband. It determined that the employee’s husband was not authorised to terminate his wife’s employment on her behalf, and that it was wrong of the HR Manager to have proceeded on that assumption without taking steps to verify the existence of any such authority.[3]
The HR Manager was fully aware of the employee’s complaints about workplace bullying and proposal to exercise her rights against the Employer. Keen to avoid a drawn out process, the HR Manager decided to grasp the first opportunity to remove her from the company. The court was satisfied that the employee was dismissed from employment because she proposed to exercise a workplace right.[4] Accordingly, the Employer breached s 340 of the Fair Work Act.
HR Manager held accessorily liable
The court was highly critical of the HR Manager’s conduct following the events of 6 May 2020.
First, given the unique circumstances, it should have been apparent to the HR Manager, an experienced human resources professional, that whatever the employee’s husband said was said ‘in the heat of the moment’. Instead, he elected to rely on the statement ‘she’s never coming back’ as constituting a resignation without seeking any confirmation in writing from the employee.[5]
Second, despite initiating a ‘welfare check’, having heard about the employee’s distress and allegations of racist bullying and harassment, the HR Manager failed to make any form of comprehensive investigation into the allegations, and did very little if anything to genuinely enquire about her welfare.[6] For example, he took no step to understand why the employee was upset and did not invite her to expand on the general allegations or put them in writing.[7]
In light of the above, the court was satisfied that the HR Manager was clearly a person ‘involved’ in the dismissal, and should be held accessorily liable for the contravention pursuant to s 550 of the Fair Work Act.[8]
Penalties
The court was of the opinion that there is a high need for deterrence in this case, as the nature of the contravention and the loss and damage sustained by the employee were serious.[9]
The Employer was ordered to pay a penalty of $37,800, and the HR Manager was ordered to pay a penalty of $7,560.[10]
Takeaways
- Employers should be cautious when relying on statements made by an employee’s family member without seeking written confirmation from the employee.
- Employers must not take adverse action against an employee to avoid having to deal with complaints of workplace bullying or the prospect of legal proceedings.
- HR Managers should bear in mind that they can be held personally liable and be subject to pecuniary penalties for being involved in the Employer’s adverse action.
If you have any queries, please do not hesitate to contact Michael Bishop or Amelita Hensman of our Employment Law Team.
[1] [2022] FedCFamC2G 418, [55].
[2] [2022] FedCFamC2G 418, [63].
[3] [2022] FedCFamC2G 418, [72].
[4] [2022] FedCFamC2G 418, [92].
[5] [2022] FedCFamC2G 418, [72].
[6] [2022] FedCFamC2G 418, [86].
[7] [2022] FedCFamC2G 418, [88].
[8] [2022] FedCFamC2G 418, [105].
[9] [2023] FedCFamC2G 251, [71].
[10] [2023] FedCFamC2G 251, [72].
Authors
