‘Merely Following Orders’ Doesn’t Cut It
When two senior managers in HR followed instructions to alter an employee’s status because he resigned from the union, they were on a path to being fined for taking adverse action in contravention of the Fair Work Act.
A union complained that an employee who was on salary, had resigned from the union. Union officials claimed this was causing concern among the other workers.
The employer’s regional manager chose to instruct the HR managers to remove the employee from salary and put him on a different contract. The Fair Work Building Industry Inspectorate took the company and the managers to court on the basis that the employee was entitled to resign from the union and should not have been taken off his salaried contract and therefore “injured” in his employment.
The court looked closely at the situation of the two managers, and explored the obvious difficulty of them going against the instructions of their senior manager. The managers had tried to argue they were not that experienced and did not really appreciate what they were doing was wrong, but the court dismissed this out of hand. They were senior and would have known what they were doing was improper, the court said. The court found that the company and the managers substantially acted as they did for union membership issue, and not the other reasons proffered as explanation.
The decision demonstrates that not just corporate entities, but individual managers too, can be convicted of offences against the Fair Work Act and fined (in this case $3,500 each for the managers). The two managers could have refused to follow their orders and would have had the protection of the Fair Work Act themselves. That is because, while an employee has a fundamental obligation to obey an employer’s instructions, those instructions must be lawful. In this case they weren’t and the court said they patently weren’t.
On top of the fines, these senior managers now have a potentially career damaging finding against them. These court findings are public documents and the outcome of this case may have far reaching and long term negative consequences for these two managers. This case serves to remind line managers that the law can protect them if they refuse to perform an illegal or unlawful act and the law can equally be brought to bear on them as individuals if they don’t refuse.