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March 2020

External adviser caught by accessory liability provisions

External adviser caught by accessory liability provisions

The Case

Myers v Arenco Holdings Pty Ltd & Ors (2019)

Arenco Holdings Pty Ltd (Arenco) employed Ms Myers as a yoga instructor. Ms Myers advised her supervisor that she was not being paid in accordance with the Fitness Industry Award 2010. The supervisor thereafter terminated Ms Myers’ employment and said Ms Myers would be re-engaged as a contractor.

Ms Myers commenced general protection proceedings against Arenco. She claimed that Arenco had taken adverse action against her because she had made a complaint or enquiry about her employment. Ms Myers included her employer as a respondent to the claim, as well as Ms Myers’ supervisor and the external HR consultant who had provided advice to terminate Ms Myers’ employment.

Arenco denied the claims, saying that the reason for termination was poor performance. However, text messages sent to Ms Myers thanking her for her work and the absence of any performance management process refuted that claim.

The Verdict

The Federal Circuit Court held that:

  • Ms Myers had not been dismissed for poor performance;
  • Arenco had terminated Ms Myers’ employment because of the workplace complaint she had made; and
  • Ms Myers’ supervisor and the external HR consultant were involved in the contravention committed by Arenco, and were therefore accessorily liable for the breach.

Compensation and penalties will be awarded to Ms Myer. However, these are yet to be determined.

The Lessons

This case demonstrates the willingness of courts to use the accessory liability provisions in the Fair Work Act 2009 (Cth) (FW Act). Managers, advisers and officers who are involved in contraventions may be found accessorily liable for the employer’s contravention(s) of the FW Act. Furthermore, advisers who provide advice to an employer do not have to be

employed by them to fall foul of the accessory liability provisions. Such persons can be external to the organisation, e.g. accountants, HR consultants, lawyers or anyone else ‘involved’ in the contravention.

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