Imagine this scenario. You are an HR Manager at a construction firm. The state operations manager has decided that a particular employee should be taken off a salary contract and put onto wages and an enterprise agreement. One reason for this is that the employee has recently resigned from the union and the operations manager is unhappy with this. He asks HR to implement the decision. Does this constitute “adverse action”? What should you do?
There are many complexities and ambiguities in workplace relations law and it is not uncommon for businesses to sail close to the wind when implementing strategic decisions. Every now and then, however, a business crosses the line and seeks to implement a decision which is unlawful.
In our opening scenario, similar to one recently dealt with by the federal circuit court, an HR manager followed orders and implemented the decision. By doing so, the HR manager contravened the Fair Work Act and had to pay a $3,500 fine.
For HR professionals who pride themselves on their commercial acumen and ability to come up with practical solutions, saying “no” can be a politically fraught decision. HR teams are there to support the business, not to create obstacles.
But there is a problem. If you have helped implement an unlawful decision and the matter ends up before the courts, you could be personally liable. It is becoming clear that the “just following orders” defence may only provide you with limited protection, at best. In recent years, HR managers have been held liable and fined for implementing decisions which were, in effect, decisions taken by other members of management with limited input from HR.
One can only imagine how much of a career obstacle an adverse court decision would be for any luckless HR manager subjected to an adverse order.
This issue is not black and white and there are a number of variables which may influence a court’s decision. Was the breach blatant? To what extent did the HR manager demonstrate egregious ignorance or wilful disregard of employee rights? Did the HR manager attempt to counsel against the decision?
There are a few practical lessons here for HR managers. First and foremost, maintain a good practical understanding of the law. If the business is sailing too close to the wind, make sure you put your concerns on the record. Keep notes of any such conversations and correspondence. There are no easy solutions to this conundrum, but taking these steps will ensure that you are able to justify the actions you take.
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This article is an edited version. The full article was first published in the February 2016 issue of HRMonthly magazine as ‘Just following orders’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.