Rick Catanzariti to speak at upcoming HRD Employment Law Masterclass in Brisbane
There’s a growing trend in legal cases that all HR leaders should have on their radar, according to one employment lawyer – namely, that it’s becoming increasingly popular for plaintiff or applicant law firms to name individuals in cases, as well as the company.
“In one recent case, because the company acted unlawfully and the HR manager was involved in the decision to dismiss, the HR manager was fined as well as the company,” says Rick Catanzariti, partner at DLA Piper law firm. In this case the HR manager was fined over $7,500.
“This is an accelerating trend over the last 12 to 24 months,” he adds.
Catanzariti will be a featured speaker at the upcoming HRD Employment Law Masterclass in Brisbane, and he will be covering this trend, as well as giving guidance on defending these type of cases.
Court looks at HR manager in unlawful adverse action
Employers and their HR staff should be cautious, bearing in mind these penalties can be applied against individuals involved in the decision-making process, he says.
“Typically, they'll name a senior person high up in the organization, for example, a chief executive officer who might have been involved in a decision, because they think that puts pressure on the CEO to resolve the case,” notes Catanzariti.
The case in question is that of United Workers’ Union v Bervar Pty Ltd [2022], in which the court found the HR manager was accessorily liable for his involvement in an employer’s unlawful adverse action.
In addition to the penalty imposed on the HR manager, the court ordered the employer to pay $47,834 as compensation for economic loss and $9,000 as general damages. The Court also ordered the employer to pay a penalty of $37,800.
Says Catanzariti: “The court found that given his level of experience, the HR [manager] should never have accepted the authority of the husband.
“For anyone in the HR profession, this also might mean if you're not comfortable with what's happening — maybe what the company or more senior people are asking you to do — you might need to have a bit more courage to push back because you can be personally liable.”
FWC case looks at employee training
Another recent case Catanzariti highlights as noteworthy for HR leaders involved a reliance on online training modules for employees.
Brought to the Fair Work Commission, Pelly v Ventia Australia Pty Ltd saw the Commissioner acknowledge the unfair dismissal of a senior firefighter for allegedly inappropriate social media behaviour.
“The Commissioner commented that online training, in many respects, doesn't deliver the same effectiveness or educational outcomes as face-to-face training, and that good practice was for interactive and immersive training and the importance of using people with expertise,” he says.
“The comments also included that the training provided by the employer about social media bullying and sexual harassment was not acceptable.”
The case highlights the need to review training and ascertain whether it's suitable for current needs, says Catanzariti. — in particular in Australia where there are new laws around sexual harassment, respect at work and taking a more proactive approach to preventing sexual harassment.
Redundancy decisions examined in FWC case
Another area of interest for HR is the importance of consultation in a redundancy situation, and the need to look at options for alternative positions in genuine redundancy case, especially overseas opportunities, he says.
In the case Khliustova v Isoton Pty Ltd, for example, an employee in an IT role was made redundant but the Commission found a lack of consultation, with a possibility the employee may have been able to do one or more positions overseas.
“By not consulting and not considering that position, the dismissal was unfair, even though the position was genuinely made redundant,” says Catanzariti. “This is a reminder that caution is needed and employers must consider overseas positions as well when faced with a redundancy situation.”
For more great insights, register today for the upcoming HRD Employment Law Masterclass in Brisbane.