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Friday Workplace Briefing

The Duties of HR and OHS Managers to Stand Up For What Is Right

HR and safety managers are often asked to bend the rules – what should they do?

In this week’s Friday Workplace Briefing, Andrew and Nina discuss the duties of HR and OHS managers to stand up for what is right.

To view the full episode and catch up with the week’s latest news and developments please visit this link.

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: In the last couple of weeks I think Nina and I, and Kim as well, have had a number of HR and safety managers say to us, look, I’m in this really difficult position, I’ve been asked to do this and I don’t know what to do.

And all of us have said the same thing, which the current case law is increasingly identifying in HR and in safety, you’re an owner of a body of knowledge, you know what is lawfully right and not or you will with that title be deemed to have had that knowledge. And if you take acts which are inconsistent with that, then you have personal liability. All the cases we’re going to talk about don’t necessarily talk about personal liability, but what they do is destroy brands. So we’ve acted on a number of occasions where HR people have been named and as a result of that, have lost their jobs and found suitable work and future very difficult, and that’s because of social media and because of the fact we do have Workplace Express up there naming people and doing things.

So what we thought we’d do is, if we look at Northgate and Melco, which is somebody being told to dismiss somebody immediately.

Nina Hoang: Yeah, but with no reason, just get rid of them.

Andrew Douglas: Claim was successful by the worker, of course, but the agent–

Nina Hoang: No, no, wait, wait, wait. Like the fact is the HR manager was told to dismiss someone, no questions asked. They did. Then the next day they got a complaint by someone else who’d been dismissed, no questions asked, and then the HR manager was dismissed by the CO, no questions asked. It was the HR manager for the claim. It’s crazy.

Andrew Douglas: Well, there you go. But the bottom line is that each part along the way, any litigious process will name who the HR manager was. And in this case they acted unlawfully themselves.

Nina Hoang: Yeah.

Andrew Douglas: No repercussions there, but as we start to go down into Fair Work Ombudsman and DTF, which is the Din Tai Fung case where the manager manipulated the payroll to reflect deliberately the underpayment to make it look right. Then there was large personal liability. I think it was a $100,000 fine or something like that.

Nina Hoang: Yeah, something like that. $100,000 or $150,000 fine. Because they were clearly personally involved. But I think the more interesting case is the one involving underpayment with the NSH North, which was another underpayment, but the HR manager knew that what was happening was wrong and raised it with the general manager and said, look, I don’t think we should be doing this and the general manager said, just do it anyway and they complied and they tried to defend themselves and said, look, I actually did try to raise it but I was ignored and in my culture it’s very difficult to go against an older male figure, things like that.

And the Fair Work Ombudsman who brought the case, and also the court said, look, that’s not a legitimate excuse, at all, because if you know something’s wrong, your obligation is to actually do what you reasonably can to stop it, not just raise it once and then keep engaging in the unlawful behaviour.

Andrew Douglas: I know. And look, we also saw, we’re killing Sophie trying to put up labels. We run between cases.

Nina Hoang: Sorry, we’re jumping all over.

Andrew Douglas: But the Baulderstone’s another case where they tried to put a person on salary when they understood they reward based, and I guess the case that I always go back to is Fair Work Ombudsman and Centennial.

I’m killing you, Soph, I know. It’s the second last case.

But this is a case where the Fair Work, where the HR manager with the director, director knew that putting them on the contract as a contractor was not a lawful process. The HR manager said that. They knew when they didn’t pay them for the work that the training they were doing that was unlawful, and the HR manager advised it but did nothing about it and was found to be personally liable along with the director.

So there’s a whole lot of cases that Soph is flashing across the screen as we’re moving, but they’re all relevant cases that go to it.

The case I haven’t got in here, and it’s my fault because I should have given it, is the OHS manager who became operational in a sense. They said, we’ve got a problem. The name of it escapes me, but said, look, we’ve got this problem, we need to do a risk assessment, then didn’t do a complete risk assessment, and as a result of that, an injury occurred and the OHS–

Nina Hoang: Is that the vaccine one?

Andrew Douglas: Yeah, I think so. The OHS manager became personally liable and was prosecuted for it.

So I guess the purpose of the day, and we’ve really made Sophie’s life hell, while you and I have discussed this, is the courts now see this dedicated body of knowledges in professional people in professions which weren’t recognised as pure professions with a law around them, like HR managers and safety managers, that’s over now and the gloves are off.

So for underpayments, mischaracterization of people trying to sneak things through, doing terminations that are wrong. Remember, in general protections, you can be brought as an individual and commonly are as an HR manager when you prosecute the termination. Liability is landing on HR and soon safety managers on a regular basis. So stick to your body of knowledge, advocate, say that you’re not happy with what’s happening–

Nina Hoang: And take reasonable steps to stop it.

Andrew Douglas: Take reasonable steps to stop it, and then if they wish to proceed from it, step back.

Nina Hoang: Yeah, because remember under safety there’s also reckless endangerment risk as well.

Andrew Douglas: Yeah. Okay. Well, let’s go to–

Nina Hoang: The case study.

Andrew Douglas: Case study.

Nina Hoang: All right.

Max was not amused. Flexible work was becoming less flexible and more onerous as the management sought satisfaction that work was getting done. His boss, Angela, was a good woman, but struggling with her diaspora of employees across greater Melbourne.

That’s so dramatic.

Andrew Douglas: I know. I just put the word in for you.

Nina Hoang: Once, they were all in at the office and easy to supervise.

The business was called Best Swap, an online trading business that arranged virtually for clients to swap goods and bid the difference in value with credit card payments. There was a mass of digital transactions and the IT team needed to be ever present to fix any problems before people left the platform in frustration.

Angela was head of IT, Max was her 2IC. His job was to maintain the system and allocate work to his team.

Angela was growing tired with Max’s two word responses on Slack. Over the past few days, the platform had been wobbly. Angela had sent increasingly urgent messages, seeking response to her concern about the vulnerability of the system.

On Slack, the following communication occurred and reflected several past communications.

Angela: “What is happening, Max, are you online? Can you see the coding issue? WTF Max, respond.”

Max: “Cool your heels, I have a sick child and just needed to help her.”

Angela: “Sorry about Tiff (his child), but your job needs you now, fix this immediately.

Max: “Give me a break, let me clean up Tiff,” as Jen, his wife has just stepped out.

Angela: Ddon’t you understand, Max, if you don’t fix this now, we’ll all be out of jobs. Stop making excuses and do it.”

Max fixed it 10 minutes later and the system managed to stay afloat. He spoke to Hugo from HR and complained that Angela bullied him and doesn’t appreciate the pressures of a young child. Hugo spoke to Angela and the CEO, Frank. They both said he had to go. Hugo explained the complaint he made and his personal caring responsibilities. They both said, “Sack him, Hugo, do it now.” Hugo didn’t protest. He arranged a Teams meeting, sent Max a show cause letter and proceeded as best he could to provide procedural fairness.

Andrew Douglas: I’m glad you’re not speaking quickly.

Nina Hoang: We have like five minutes left.

Andrew Douglas: Okay, did Angela bully Max?

Nina Hoang: No, this was… Oh wait, it was repeated behaviour.

Andrew Douglas: It was repeated behaviour but I don’t think even with WTF, not work from home, I think that that’s not enough to be bullying, okay? I think that there’s a rigour around trying to get things in the sense of urgency in it and his failure with it. Not ideal, but I don’t think it’s bullying. Okay? So that’s my view on that one.

Was Angela’s conduct a psychological hazard and breach of safety law? The answer is yes.

Nina Hoang: Yes.

Andrew Douglas: So it wasn’t bullying, it wasn’t one of the bad four, but it was certainly part of–

Nina Hoang: Not the bad four…

Andrew Douglas: -the bad 11 that sit underneath it, okay?

Was Max’s conduct and caring for Tiff during working hours legitimate personal carer’s responsibility and protected attribute?

Nina Hoang: Oh, that’s interesting, because you’re not supposed to be caring for your children while you’re at work.

Andrew Douglas: But you’ve condoned it as part of work.

Nina Hoang: Yeah, yeah.

Andrew Douglas: So I don’t know what the right answer is because we’d need more facts, but can I just say to you, this is one of the real problems of work from home is people take on personal caring and family responsibilities and it’s assumed as part of the role that that’s okay.

Nina Hoang: Yeah, because they haven’t taken the leave on it, but you’re allowing them to do it, yeah.

Andrew Douglas: Yeah. Okay, next question. God, there’s more than I thought. Would Max have a good unfair dismissal claim?

Nina Hoang: No, not for an unfair dismissal.

Andrew Douglas: No.

Nina Hoang: Because it’s about valid reason and… Oh no, there’s no valid reason.

Andrew Douglas: There’s no valid, there’s no valid. That is a great unfair dismissal. Or you have a good general protections claim or discrimination. Less clear, can I just say, the unfair dismissal is the easy one?

Nina Hoang: But they’re getting rid of him because he made a complaint.

Andrew Douglas: Well, maybe they are and maybe they’re just sick of him being hopeless.

Nina Hoang: But based on this thing, as soon as he made a complaint, the temporal connection–

Andrew Douglas: Well, okay.

Nina Hoang: -they would struggle, I think.

Andrew Douglas: Yeah. I don’t think they’d do well. No. If Max had received a final warning and the impact of the disciplinary process left him with a diagnosable mental condition, would he have a successful workers’ compensation claim?

Nina Hoang: I think so.

Andrew Douglas: I think so too.

Nina Hoang: Because it’s not reasonable management action.

Andrew Douglas: No, it’s not.

Nina Hoang: It’s not bullying, but the way that they did it was not reasonable.

Andrew Douglas: Can I just say, we’re now seven minutes over time and we’re going to speak really quickly and say goodbye.

Nina Hoang: We’re not, we’re three minutes–

Andrew Douglas: Three minutes over time, are we?

Nina Hoang: Yeah, we’ve got three minutes to go, yeah.

Andrew Douglas: Oh, we’ve got three minutes to go. You told me we were behind and I’ve been (makes a blabbing sound).

Nina Hoang: I thought we had five minutes to go.

Andrew Douglas: I’ve been babbling, you’ve been babbling.

Nina Hoang: All right.

Andrew Douglas: Okay. Thumbs up?

Nina Hoang: Yeah. Thanks for joining in.

Andrew Douglas: See you later, bye-bye.

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