employment l issue no. 8 l hr personnel beware
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Mullins Lawyers l eNews Publications l Page 1
EMPLOYMENT l Issue No. 08 l HR personnel beware
November 2015
Your employer’s failure to comply with the National Employment Standards (NES) can damage your personal financial wellbeing.
The recent decision of the Federal Circuit Court in the case of Cerin v ACI Operations Pty Ltd & Ors [2015] FCCA 2762 (14 October 2015) is a salutary and timely reminder for HR personnel of the risk of personal liability under the accessorial liability provisions of the Fair Work Act.
The facts of the Cerin case involved the termination of an employee who was in receipt of workers’ compensation. The employer gave 28 days notice of termination instead of the five weeks notice which was required under the NES. Accordingly, the employee lodged a claim to the effect that there had been a breach of s44 of the Fair Work Act and that he had received insufficient notice and suffered economic loss of $181.66. He further alleged that the HR Manager at the employer’s Adelaide plant was aware of the NES and the minimum standards which included the notice requirements.
In the course of the case, the HR Manager had admitted that she was aware of the requirements of the NES and could not provide any explanation for the employer failing to provide the requisite notice.
In light of the admission, the Federal Circuit Court Judge Simpson said that the failure to provide the requisite notice could not be described as a “procedural and not a deliberate failure” and accordingly, the Federal Circuit Court imposed a civil penalty of $1,020 against the HR Manager personally.
The employer was ordered to pay a civil penalty of $20,400.
This underlines the importance of HR personnel checking that employee entitlements are paid in full and in compliance with the NES. Failure to do so may well result in adverse personal financial consequences for the HR personnel involved.
Pat Mullins
Partner Mullins Lawyers
t +61 7 3224 0350
Alan Strain
Special Counsel Mullins Lawyers
t +61 7 3224 0323