Lawyer Maree Skinner to speak at upcoming HRD Employment Masterclass Sydney
HR managers should be mindful that they can be personally liable in general protections claims, advises lawyer Maree Skinner.
Skinner’s remarks follow the recent case of United Workers’ Union v Bervar Pty Ltd (No 2) [2023] which resulted in both the company being fined but also the HR manager personally receiving a fine of $7,500, she says.
“This case is a very good reminder for HR managers that they can be personally liable,” says the partner at Maddocks, who will be speaking about this and other lessons from the court at the upcoming Employment Law Masterclass Sydney.
The case involved termination of employment of an employee following a performance measurement discussion, which led to the employee going home, stressed, says Skinner. The HR manager followed up with the employee after she’d left in the middle of a shift, but the employee’s husband answered the phone, said she would never return to work and that they were considering making a claim to the Fair Work Commission (FWC) for bullying and harassment.
Based on the conversation with the husband, the HR manager terminated the employment. The employee subsequently brought an unfair dismissal claim, which she won.
FWC imposes penalties on employer
“In general protections claims, an individual can also be named as a respondent, along with the employing entity,” says Skinner. “This is because there is an accessorial provision which says that if a person is involved in a contravention of the general protections provisions, they can also be found to have contravened those same provisions.”
In this case, the HR manager was fined for involvement in that contravention and found to be an accessory, personally liable along with the company for terminating the employment unlawfully and was fined, she says.
In addition to the fine for the HR manager, penalties were imposed as well as compensation being awarded to the employee.
“One important lesson for HR managers coming out of this case is that you can't take the word of someone’s spouse or partner, or parent or friend, as authority for the employee. You need to speak to the employee or get something directly from the employee to confirm that whatever is being communicated by the next of kin or the other person is actually being communicated with their authority,” says Skinner.
Follow processes fully to avoid FWC
The further lesson for HR managers from this case comes from the Fair Work Commission in finding the reason for termination was the husband’s comment that they were going to make a FWC claim, she says.
“People should never be too quick to assume that if someone says in the heat of the moment they’re not coming back or that they’re going to make a claim, that there isn’t a knee-jerk reaction to those comments and that the process is followed properly,” says Skinner.
“It's often when people rush in and terminate that things go wrong. Statements should be checked with the employee that they actually want to resign before steps are taken to terminate employment.”
Fair Work Act: genuine redundancies
Having observed a number of restructures and redundancy programmes currently taking place, Skinner also plans to include at the Masterclass coverage of Khliustova v Isoton Pty Ltd [2023] which involved a restructure with redundancies in Australia following a decision by an organisation to move work offshore.
Under the Fair Work Act, an employee’s excluded from making an unfair dismissal claim where the reason is genuine redundancy, says Skinner.
“That exclusion only applies if the employer complies with any consultation obligations. So if relevant employees are covered by an award or enterprise agreement, there will be consultation obligations. Unless the employer complies with those consultation obligations, the genuine redundancy exclusion of the unfair dismissal claim won’t apply, so employees will be able to bring an unfair dismissal claim.”
Redeployment options must include overseas
The second element of this case that’s of particular note to HR is that to ensure exclusion applies, an employer has to consider redeployment of the employee, even if that means to a role overseas with a lower salary, she says.
Skinner, who plans to cover further details on this and other cases at the HRD Employment Law Masterclass in Sydney, stresses one action employers can take to help prevent from getting tripped up is to ensure they’re fulfilling obligations in a genuine manner.
“This means not just box ticking but involves an employer really considering all of the circumstances before making decisions to dismiss.”
