By Kelly Godfrey

Last year, we reported on the case of United Workers’ Union v Bervar Pty Ltd (2022). In that case, the Federal Court and Family Court of Australia (FCFCOA) found a human resources (HR) manager accessorily liable in Bervar Pty Ltd’s unlawful dismissal of Ms Kaur after she exercised her workplace rights. Ms Kaur’s husband had indicated that Ms Kaur would not be returning to work and that she would be commencing proceedings against Bervar. Bervar thereafter terminated Ms Kaur’s employment without Ms Kaur herself having communicated she was resigning her employment.

Recently, the FCFCOA had to decide the penalty to impose on Bervar and the HR manager for his direct involvement in the unlawful termination of Ms Kaur.

In determining the compensation to be awarded and penalties to be imposed, the FCFCOA made the following findings:

• the dismissal of Ms Kaur had caused her economic loss;
• Ms Kaur had been employed for 4 years prior to her dismissal and there had been no disciplinary issues during this time;
• but for the employment termination, Ms Kaur would have remained in employment with Bervar for some time;
• Ms Kaur’s husband had no authority to finalise Ms Kaur’s employment and Bervar should not have assumed Ms Kaur was resigning her employment;
• Ms Kaur was distressed and humiliated by the employment termination, and was not afforded procedural fairness;
• the breaches were serious, and therefore specific and general deterrence was required to deter other employers from engaging in similar action;
• Bervar and the HR manager had shown no remorse or contrition for their actions; and
• Ms Kaur was a vulnerable migrant and English was not her first language.

The FCFCOA awarded Ms Kaur:

• 12 months’ pay (i.e. $47,834.26) in economic loss;
• $9,000 in general damages for hurt, humiliation, pain and suffering;
• the quantum of the penalty imposed on Bervar of $37,800; and
• the quantum of the penalty imposed on the HR manager of $7,560.

This case is an important reminder that individuals (HR officers, managers, directors, etc) within an employer’s business can be found accessorily liable for their involvement in an employer’s unlawful actions. This can result in expensive penalties being imposed, in addition to costly litigation. It also results in irreparable damage to an employer and the individual’s reputations as most of these cases are reported and publicly available online.