As HR professionals, we are often instructed to do things that do not always align with our legislative responsibilities or company policies and procedures. Therefore is it a sound defence to say that we were instructed to something that is incorrect and were only following orders? The answer is NO!
In August 2015, the Federal Circuit Court fined a construction company $25,000 for taking adverse action against a worker (FCCA 2129). On top of that, the Court imposed $7,000 in penalties against two HR Managers who were carrying out orders and failed to “exercise their choice” to refuse to comply. The Judge was very clear that the HR Managers “had a choice of not implementing the decision, but failed to exercise that choice”, which in turn counteracted “the mitigating factor that they did not originate the contravening conduct”.
So what does this significant decision mean for HR professionals? It recognises that we are specialists in our field and when asked to do things that are industrially unsound we must exercise our choice and find a better solution. In my experience the majority of requests that don’t comply with legislation comes from a lack of knowledge as opposed to ill intent. By focussing on the outcome that is trying to be achieved, there is normally a perfectly sound way to achieve it.
HR has worked so hard over the years to transform itself from being a reactive and transactional function to one that plays a more business-oriented role. We’ve pushed to ‘get a seat at the table’ and influence organisational strategic direction. Australia continues to have a complex industrial relations legislative framework, with plenty of jurisdictions for employees to bring claims against their employer.
Making poor HR decisions is costly both financially and culturally for organisations. In this case, the $32,000 penalties imposed is only the tip of the iceberg. Management to prepare the case and legal fees would make the penalty costs fade into insignificance and all because HR Managers actioned an instruction that was very clearly inappropriate.
This decision is a backhanded compliment by recognising the value our profession brings to organisations and the important role HR plays. Therefore, keep this decision in mind next time you are asked to do something that doesn’t sit well with you. Have courage and stand up for what is right!