A leading supermarket chain and its HR team have unfortunately come under scrutiny after they dealt with a petition (regarding lighting for the car park, which was a safety concern) engineered by an employee adversely by:
- Moving the employee from the Dairy section to the Grocery section;
- Directing the employee to attend a meeting to “deal with a range of issues” and if she did not attend she would be subject to disciplinary action;
- The employee was “interrogated” about the petition and the manager sounded very annoyed on the phone; and,
- When the Union were involved in the issue the HR team wrote to the manager and said … “I’m sorry that you have had to deal with RAFFWU lately, they can be very difficult to deal with ..”[1]
In the matter of Retail and Fast Food Workers Union Incorporated v Woolworths Group Limited [2022] FedCFamC2G 578 (22 July 2022) the Federal Circuit and Family Court of Australia found in favour of the Applicant (the Union).
As a result of the adverse reaction by the manager and the subsequent corporate strategic actions taken by the HR team which were exposed, the Union notified of a dispute under the Enterprise Agreement on behalf of the employee. It was accepted that this was a workplace right.
The Respondent had taken adverse action by directing her to attend the “issues” meeting – Deputy Chief Judge Mercuri had this to say:
“I am satisfied that directing the employee to attend a meeting or face the prospect of disciplinary action does constitute altering the employee’s employment to their detriment.” [2]
The causal nexus between the dispute arising and the actions taken by the manager and Woolworths was also accepted.
As a result, a $10,000 fine was handed down and this was only limited because of:
- The contrition shown – an apology was made to the employee; and,
- A $3,000 lump sum was already paid to the employee personally as compensation.
Lessons to learn for HR and Employers
- Petitions, complaints and reasonable enquiries made by employees should not be negatively reacted to – this is very hard in practice, however from a risk management perspective it is integral. Keep calm, ask questions and try and deal with it from their perspective as well as ensuring you are complying with any policies, processes or agreement clauses in place.
- Managers need to understand that dealing with a Union or any representative of an employee (especially if it concerns General Protections) requires help – HR, legal or otherwise – in terms of how to respond and what to say.
- Human Resources and People and Culture must also understand the scrutiny that may be levelled against correspondence which may be internal. Whether it is because it has been disclosed or does not garner legal professional privilege, correspondence–especially open correspondence–should be carefully drafted. Just like this case, you should keep in mind – what would a Judge think of your email?
This article was originally published here and was republished with permission.
Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem.