HR advisor puts yoga studio in cactus position

Cases

HR advisor puts yoga studio in cactus position

A court has ruled that an HR advisor was accessorily liable for adverse action taken against a yoga teacher who queried her pay and conditions.

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When an employee was subjected to adverse action (dismissal) for questioning her pay and conditions before replying to a request to set out her “ideal scenario” for future work scheduling, the Federal Circuit Court found that an external HR advisor had played a central role in the employer’s decision and was accessorily liable.

Facts of case


The employee was a yoga instructor employed part-time in a teaching and administrative role. After almost three months of employment, the employer and HR advisor asked her to submit her “ideal scenario” for a teaching schedule in her role. This was because the employer intended to expand the business and make new arrangements. At that meeting there was no mention of any job performance issues or proposals to change her employment status.

The employee believed she had not been paid and rostered in compliance with her award to date and asked to discuss those issues before submitting her “scenario”. She mentioned that she intended to contact the Fair Work Ombudsman for advice.

The employer did not reply, and when the employee arrived for her next shift, her supervisor told her that her position was terminated and offered her work as an independent contractor. The employer said that, as she had been employed for one day short of three months, she was still under probation and the employer could do what it liked. The employee refused the offer of contract work and the employer later left a voice message confirming the termination of her part-time job and stating that if she did not accept a forthcoming offer of a contract work arrangement, she would receive no further work. The employer then terminated her employment with one week’s notice.

When the employee lodged a claim of adverse action, the employer claimed that her work performance, attitude and work ethic were poor, and she had left work shifts without authorisation. Those were the only reasons for terminating her employment. However, the court found that the employer failed to provide any evidence to support those claims. Social media posts by her supervisor also did not indicate any dissatisfaction with her work, and in fact contained praise of the employee.

Decision


The court found that the employer decided to dismiss the employee after consulting the HR advisor. The reason was the employee’s claim that the employer was not complying with her award, which the employer and HR advisor failed to disprove. Its motive was to reduce employment costs and avoid having to pay the employee her full award entitlements. The supervisor had kept no records of any of the alleged job performance issues.

Both the supervisor and HR advisor were liable for the adverse action.

The employee was entitled to compensation for both financial loss and hurt and distress, the latter because of the incorrect allegations of poor job performance and work attitude. The court sought submissions regarding the amount of compensation and amount of penalty for breaching the Fair Work Act 2009.

The bottom line: This case is an example of where an HR practitioner, even if acting as an external consultant, can be found accessorially liable for adverse action committed by an employer. The HR advisor in this case recommended or made the decision to terminate employment, which the employer implemented.

The case also illustrates the need for an employer to keep documented records of any concerns about an employee’s job performance. When the court questioned the employer’s claim of poor performance as the reason for termination, the employer had no records or other evidence to support its claims.

Read the judgment


Myers v Arenco Holdings Pty Ltd & Ors {2019] FCCA 3077, 29 October 2019
 
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