Just because you’re an HR consultant, that doesn’t mean you’re immune from accessorial liability.

In Myers v Arenco Holdings Pty Ltd & Ors [2019] the Federal Circuit Court of Australia (FCC) found Arenco Holdings Pty Ltd & Ors (Arenco) to be liable and a human resources advisor and supervisor accessorily liable for the unlawful dismissal of an employee. 

The employee was employed as a fitness instructor and administration assistant on a part-time basis. On 2 July 2018, the employee was asked by the human resources advisor and supervisor to provide her ideal teaching roster in writing by the morning of 3 July 2018. 

Upon checking the Fitness Award, the employee queried whether she had been paid or rostered correctly and subsequently raised such concerns with the supervisor by text and explained in person that she needed to clarify the award rates before confirming her ideal work roster. 

On the morning of 3 July 2018, the employee informed her supervisor by text that she was being underpaid in breach of the Fitness Award. When she arrived at work that afternoon she was advised her permanent part time employment would be terminated “because [she] had been employed one less day than three months and therefore still on probation, Om Yoga can do whatever it wants”. The next morning she received written confirmation of the termination of her employment.

The employee commenced proceedings against the employer, human resources advisor and supervisor alleging her dismissal constituted adverse action against her for proposing to exercise a workplace right under section 340 of the Fair Work Act 2009 act.

Revenge of an earth sign angel

The Respondents defended the dismissal and alleged the employee’s performance was ‘careless and sloppy’ and that, at times, she had a poor work ethic and negative attitude. The FCC found it unconvincing that, while allegedly acting in concert with the HR advisor to manage a deteriorating employment situation over some months, the supervisor would neither make a note of any relevant complaint about employee’s performance, or otherwise write down in report form her complaints about such lack of performance. 

Further there was evidence of appraisals by the supervisor of the employee in texts and social media that referred to the employee as ‘an earth sign angel’, which the supervisor conceded was used astrologically for people who are “very hardworking and very efficient”. Such appraisals were considered to be inconsistent with the allegation. 

Judge Egan observed: “The texts and Facebook posts. . . clearly do not reflect the level of work dissatisfaction with [the employee’s] work performance which was said by [supervisor] to have existed since the commencement of [the employee’s] employment…”

HR practitioners can be found personally liable under legislative changes. AHRI Professional Members receive ProCover Indemnity insurance as part of their membership – find out more here.

Zen supervisor conceded she abhorred confrontation 

The FCC found the decision to terminate was made by the HR advisor in consultation with the supervisor. The supervisor in cross-examination conceded that rather than being a manager she was a coordinator and the employer was criticised for placing her in a position where she was unqualified in matters of human resource management. The supervisor admitted she abhorred confrontation. 

The FCC held the employee’s termination constituted adverse action taken by Arenco as a result of the employee asserting that the Fitness Award had not been complied with. The human resources advisor and supervisor were each ‘involved in’ the said contravention and are accordingly accessorily liable for such contravention of the Act. The FCC found that the human resources advisor and supervisor sought to portray the termination as based on work performance issues, when in fact they were motivated by a desire to avoid the financial consequences which would be suffered by the employer if it was required to pay to her due entitlements.