Update - Liability for HR Managers – Being “involved” in Fair Work Act contraventions

By Ross Levin, Partner, Malcolm Davis, Partner, Adam Lunn, Partner and Lisa Anaf, Partner

In our Alert of July this year, we reported on the Federal Circuit Court decision in Cerin v. ACI Operations and Others (see article).

You may recall that in this matter, not only was it found that the employer had contravened section 44 of the Fair Work Act by failing to give a worker five weeks’ notice, but that the human resources manager was also found to be “involved” in this contravention.

In a decision handed down on 15 October, Judge Simpson of the Federal Circuit Court. ordered that the human resources manager in question pay a pecuniary penalty of $1,020 for her involvement in the contravention.

The worker in question suffered a loss as a result of not being given the appropriate notice (or payment in lieu) of $181.66.

In handing down his decision, his Honour found:

“I note that (the human resources manager) only issued the termination letter and authorised payment. She was not present at the meeting when …, the Third Respondent, advised the (Worker) that his employment was terminated…

On the basis of her evidence, which was not challenged by the (Worker), I agree with the respondents’ submission that (the human resources manager’s) involvement in the breach was incidental and inadvertent”.

Conclusion

This decision shows that even though the relevant human resources manager’s involvement in the relevant breach of the Fair Work Act was minimal, she was still held liable as a person “involved” in the breach.

As previously discussed, because of decisions such as this one, human resources professionals should be diligent in ensuring at the very least, that their organisations are advised and are aware of the legal ramifications of certain actions, even if their advice is ultimately ignored.

For further information, please do not hesitate to contact us.

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