HR warned over increasing personal prosecution

by Chloe Taylor01 Jul 2015
Last week, the Federal Circuit Court handed down a decision which held that an HR manager could have a penalty imposed on her, after she breached National Employment Standards (NES) during a process of dismissal.
The manager, who is employed by ACI Operations, gave the employee one month’s notice of termination as opposed to the five weeks he was entitled to.
It was found that the HR manager in question was “involved” in the company’s breach of the NES.

“The HR manager failed to provide notice in accordance with National Employment Standards,” Deivina Peethamparam, director at People + Culture Strategies told HC. “The employee was entitled to five weeks’ notice, and the HR manager effectively gave four weeks’ notice.”
She added that the way the decision stands at the moment, the HR manager has been found to have contravened provisions of the Fair Work Act (FWA) in relation to paying notice under NES.
“It remains unclear what penalty will be implemented by the courts,” Peethamparam continued. “It’s quite a simple mistake – effectively all the court found was that the notice was a couple of days short.
“This is a really timely reminder that HR managers carry great responsibility in their roles to comply with the law – and courts are sending a clear message that if you fail to meet those responsibilities, you could face personal prosecution.”
Peethamparam advised HR managers to keep up to date with employment law and seek advice when necessary.
“You might have ticked all of the boxes, but running your actions by your legal counsel can give you peace of mind. No one intends on breaching the law, but courts expect HR to comply with legislation.”
She added that it’s not to say HR managers don’t know their obligations, but given that the FWA “allows for personal prosecution”, it’s a good idea to have decisions backed up by legal experts.
According to Peethamparam, the Fair Work Ombudsman sees personal prosecution as an important operation of the FWA, with a “number of cases” having a similar outcome.
“Given how high profile this case is, it might show that courts and regulators are becoming more active in this space,” she speculated.
The decision over whether a penalty will be imposed upon the HR manager will be determined at a later hearing.
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