General protections judge gets tough
A general protections judge has fined a HR manager over $7,000. Also ordered his employer to pay almost $100,000 in fines and damages. The steep penalties come after the judge found that the manager had “humiliated” a part-time worker by dismissing because her husband told him that she wanted to quit. If you’re a woman, this ruling will be particularly refreshing given the clear message it sends to employers. Namely, that outdated ways of thinking – where employers assume a woman’s husband speaks for them – are not acceptable. General protections judge gets tough is important reading to know your rights
And it also sends a clear message that humiliating employees and treading on their rights won’t be tolerated. And if employers do so, they will face heavy consequences. Later in the article, we’ll detail the case of another HR manager who is facing even heavier penalties – with the prospect of jail time. But first, let’s take a look at the events of the first general protections case – United Workers’ Union v Bervar Pty Ltd .
HR manager dismisses employee to avoid bullying investigation
In May 2020, Indian immigrant Talwinder Kaur had been a part-time employee of Della Rosa Fresh Foods (otherwise known as Bervar) for five years when she was called into a meeting with her manager. During the meeting, her manager told her that she hadn’t performed a number of duties, causing Ms Kaur to leave the workplace mid-shift.
As a result, Della Rosa’s HR manager, Cameron Blewett, called Ms Kaur. However, she handed the phone to her husband, who told Mr Blewett that Ms Kaur had been the victim of workplace bullying. And that they were going to take action via the Fair Work Commission. Also, that she wasn’t intending to ever return to work.
Mr Blewett subsequently emailed Ms Kaur, accepting her resignation. But Ms Kaur replied to this email denying that she had never resigned. She sent another email days later, asking if she was still an employee of Della Rosa. And Mr Blewett replied saying that she was had been dismissed.
General protections judge rules that husbands can’t speak for their wives
Last year, Federal Circuit and Family Court Judge Karl Blake had found that Mr Blewett and Bervar had breached the Fair Work Act. This was as a result of committing adverse action against Ms Kaur. Judge Blake found that Ms Kaur’s husband didn’t have the authority to tender her resignation. This meant that she had been dismissed by Bervar.
Judge Blake had found that during the phone call, Mr Blewett had learned that Ms Kaur was going to take action through the FWC. This was because she had suffered “racist bullying and harassment every day.” Judge Blake determined that Mr Blewett sought to “remove [Ms Kaur] from the business” to avoid a “drawn-out process” with the Fair Work Commission.
Under the general protections provisions of the Fair Work Act 2009, Australian employees have the right to make a complaint about their working conditions. That is, either to their employer or an external body like the Fair Work Commission. If an employer dismisses an employee or alters their employment to their detriment as a result of making a complaint, this constitutes an unlawful adverse action.
General protections judge details emotional toll on Employee
Some months after finding that Mr Blewett and Bervar had committed adverse action, judge Blake made his decision regarding the financial compensation that Ms Kaur would be afforded. And in coming to his decision, he didn’t hold back in describing the heavy emotional damage that had been inflicted upon Ms Kaur.
Judge Blake remarked that it was hard to conceive of anything more “humiliating, or destructive of the self-confidence” than what Ms Kaur had experienced. That is, having been dismissed because Mr Blewett assumed her husband had the authority to tender her resignation.
Judge Blake also noted that Ms Kaur was “a vulnerable employee” with a “poor command of English.” And that she had been “disempowered and humiliated” by the adverse action taken against her, which had “clearly shaken her already low levels of confidence.” For committing adverse action against Ms Kaur, judge Blake ordered Bervar to pay her $56,000 plus interest in damages.
General protections judge throws book at Mr Blewett and Bervar
Because Mr Blewett and Bervar violated s340 of the Fair Work Act, both were liable to pay a financial penalty. And Judge Blake highlighted the actions of both parties in determining the amount of the general protections penalties. He remarked that the actions of both Mr Blewett and Bervar were “deliberate,” “serious” and “somewhat egregious.” He also commented that neither party had expressed any “contrition or remorse” for the adverse action committed against Ms Kaur.
Placing the spotlight on Mr Blewett’s behaviour, Judge Blake said that he had deliberately “availed himself of the opportunity” to dismiss Ms Kaur. That is, because she was on the verge of taking her bullying complaints to the Fair Work Commission. Judge Blake felt that in handing down penalties, there was a “high need” to set an example. That is, so other employers would be deterred from similar violations of the Fair Work Act. He ultimately handed down a $37,000 fine for Bervar. And a $7,560 fine for Mr Blewett. Given this was their first offence, these penalties were only 60% of the maximum amount.
HR manager referred to Australian Federal Police for lying about workplace agreement
The case Ms Kaur isn’t the only one that has seen a general protections judge get tough on a HR manager. In the January 2023 general protections case United Workers’ Union v Hot Wok Food Makers Pty Ltd, the judge took an even harder line with a HR manager, directing the Australian Federal Police to investigate him.
Zombie workplace agreement sees workers underpaid for 22 years
For over two decades, employees of Mantle Group subsidiary Hot Wok Food Makers, which includes such outlets as James Squire brew houses and pub chain the Pig ‘N’ Whistle, were bound by a zombie workplace agreement. A zombie workplace agreement is one that was made prior to the commencement of the Fair Work Act 2009. Such workplace agreements are allowed to remain in place simply because the employer hasn’t replaced it with another agreement.
Because it was created prior to the Fair Work Act, a zombie agreement often doesn’t uphold many of the rights that Australian workers have gained since the Act was made into law. And this was the case with Hot Wok’s workplace agreement. This had enabled the company to not pay penalty rates to its workers for 22 years.
HR manager attempts to undercut workers by lying to Fair Work Commission
The underpayment of workers, however, wasn’t the reason Hot Wok and its HR manager got in trouble with the FWC. That was, unfortunately, completely legal. Rather, it was because they had lied to and misled the Fair Work Commission. This was when attempting to move Hot Wok’s workers to a new workplace agreement in 2021. And the only reason they were doing so is because one of Hot Wok’s workers had appealed to the Fair Work Commission to end the zombie workplace agreement.
Hot Wok initially received the endorsement of the Fair Work Commission Deputy President to migrate its workers from the zombie workplace agreement. However, the United Workers’ Union soon appealed the decision. And it was discovered by a Fair Work Commissioner that the new workplace agreement was not lawful. Namely, because it permitted Hot Wok to ask its workers to undertake voluntary hours without receiving penalty rates.
Fair Work Commission Full Bench uncovers Mr Latham’s lies
That’s when the Full Bench of the Fair Work Commission got involved. In February 2023, it found that the Deputy President had only endorsed the new workplace agreement because she had “substantially relied” on the “false or misleading” employer declaration of Darren Latham, senior HR manager for Mantle Group.
Essentially, Mr Latham misled the Fair Work Commission about the new workplace agreement in order to get it approved. He lied about how many workers would be covered by the agreement. And about meetings held by Mantle Group that the Fair Work Commission Full Bench discovered never happened.
The Fair Work Commission Full Bench also discovered that Mr Latham had misled the Fair Work Commission about four workers he claimed voted for the new agreement. These four workers, it was found, weren’t at all covered by the agreement. The Fair Work Commission Full Bench stated that Mr Latham’s selection of these “four relatively high-paid managers” was part of a “deliberate manipulation of the statutory process” to get the new agreement endorsed.
The Fair Work Commission Full Bench stated that the four employees “made the choice on behalf of the large number of employees to whom the agreement was actually intended to apply.” But these employees “were deprived of any say in it” by not being able to bargain or vote. The Fair Work Commission Full Bench also discovered that a number of meetings that Mr Latham had with the four employees “never took place.” This included two information sessions and a voting meeting.
Mr Latham misled the Fair Work Commission with email
The Fair Work Commission Full Bench also discovered that Mr Latham deliberately failed to inform Hot Wok about the application for the new workplace agreement. The Fair Work Commission’s Deputy President directed Hot Wok to pass on her statement about the application to all workers that it would cover.
However, Mr Latham only emailed the statement to 10 employees. And only one of these workers would be covered by the new workplace agreement. The Fair Work Commission Full Bench found that by sending that email, Mr Latham had attempted “to deceive the Commission into believing that Hot Wok had complied with its direction.”
Mr Latham now faces criminal charges
Unfortunately for Mr Latham, misleading the Fair Work Commission in the manner he did is a serious crime. He is now accused of giving false or misleading information or knowingly producing a false or misleading document in support of an enterprise agreement application. This violates s137.1 and 137.2 of the Criminal Code.
As such, the Fair Work Commission Full Bench subsequently referred Mr Latham to the Australian Federal Police for investigation. It also rescinded the Fair Work Commission’s endorsement of Hot Wok’s workplace agreement.
This reverted all of Hot Wok’s employees to full penalty rates under the award. However, only a week prior, Mantle Group had dismissed all of its casual employees and rehired them under a different company. This meant that they were bound by a new workplace agreement that does not pay weekend penalties.
The move was made only days before Australia Day so that Mantle Group employees wouldn’t receive public holiday rates.
Have you been treated unfairly at work?
If you have had an adverse action committed against your, A Whole New Approach can help. We are not lawyers. We’re experts at making general protections claims and unfair dismissal claims a success. We have 20 years’ experience helping Australian workers navigate the complicated world of Fair Work Commission claims.
Our team can guide you through the process and ensure you have the best possible chance of success. We know that making a claim can be a daunting task. This is why we offer a no win, no fee service. This means that we only get paid if you win or settle your case. This way you can be sure that we have your best interests at heart.
Don’t let your employer get away with trampling on your rights.
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