Federal Court issues pecuniary penalties against former employer and HR Manager

Federal Court issues pecuniary penalties against former employer and HR Manager

Federal Court issues pecuniary penalties against former employer and HR Manager

The Federal Court has imposed significant penalties against a company and its HR Manager, as well as ordered sizeable compensation to a dismissed employee who succeeded in her adverse action claim.

On 31 May 2022, Justice Karl Blake delivered judgement in the matter of United Workers’ Union v Bervar Pty Ltd, determining that the employee, ‘Ms K’, had been unfairly dismissed. The details of the termination are quite brief.

Ms K, who had emigrated from India in 2013, commenced work with Bervar on 11 August 2015 and secured full-time employment as a production worker, as well as being promoted several times prior to her dismissal. As noted by Justice Blake, she had been granted additional leave prior to her accruals and offered additional overtime duties.

On 5 May 2020, she complained to a colleague that a task she had been assigned was difficult for her, and it was suggested she do other work. Subsequently, the colleague told her supervisor that Ms K was not rotating through positions on the production line and that she was refusing to load boxes onto pallets.

The following day she was invited to a meeting with management, although she was not given any notice of the meeting nor offered a support person. During the meeting, she was asked why she had refused to perform her duties and was spoken to in a forceful and direct manner.

Approximately two hours after the meeting concluded, she left work partway through her shift and did not clock off.

Subsequently, the company’s HR Manager rang her mobile phone to conduct a ‘welfare check’, but she told him to speak with her husband. Her husband told the manager that she would not be returning to work, that she had been bullied and harassed, and intended to take action in the Fair Work Commission.

In his decision, Justice Blake was scathing of the behaviour of the HR Manager, noting,

“Ms K’s employment ended because Mr Blewett purported to accept Ms K’s resignation from employment. Ms K never spoke to Mr Blewett directly about this. Instead, Mr Blewett spoke to Ms K’s husband, assuming that he had the authority to speak for Ms K. Despite knowing that Ms K was complaining about bullying, Mr Blewett took no action to identify from her the precise nature of her complaint”.

In determining compensation, Justice Blake did not accept that Ms K was unable to work for eight months following her termination due to stress or anxiety, citing the lack of any medical evidence to support the claim. However, he did assess her economic loss as equivalent to twelve months’ pay, equating to $47,834.26. He further assessed her non-economic loss at $9,000.

Justice Blake believed that the conduct of the HR Manager was deliberate and intended to deny her workplace rights. As he noted, “The nature of the contravention and the circumstances in which it occurred were serious. Senior management were involved. No contrition has been shown. The Respondents have fought the case to the end”.

Consequently, Justice Blake fixed penalties at 60% of the maximum, being $37,800 against Bervar and $7,560 against the HR Manager.

United Workers’ Union v Bervar Pty Ltd (No 2) [2023] FedCFamC2G 251 (4 April 2023)

For queries about adverse action claims, performance management, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 330.0523

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