VIC Employment Law - Lawful Direction from HR?

[Lou S]

Under Employment Law, can a HR manager direct that, following my engagement of a solicitor in relation to a workplace matter, I am required to communicate with the HR manager via my solicitor (and prohibit me from communicating with the employer directly in relation to the workplace matter)?

• Can such a direction be classed as a "lawful direction" from the HR manager?
• If I submitted medical certificates directly to the HR manager, can this be classed as disobeying a lawful direction?
• Can my submitting the certificates directly to the HR manager be a basis for disciplinary action?
• Can the HR manager lawfully cause my legal costs to be higher than they otherwise would be?

Situation: - After I was bullied by an aggressive manager, I notified the HR manager of his behaviour and actions. As a direct response to this report, the HR manager instigated disciplinary action against me.

I then approached a law firm to seek protection under Fair Work Australia legislation.

The manager's aggression and bullying resulted in me being unwell. When I submitted (the first) medical certificate to the HR manger, the HR manager responded that, (because I had commenced litigation against the organisation) all communication and documentation needs to be via my solicitor.

I obtained a (second) medical certificate and, after sending it to my solicitor to send to the HR manager, my solicitor advised that, to minimise costs, I should submit the certificate directly to the HR manager - which I did.

I submitted subsequent certificates directly to the employer. On each occasion, the HR manager responded that I was required to submit all correspondence through my solicitor.

The HR manager has included, in the allegations against me, that I disobeyed their instruction to communicate with them only through my solicitor.

 

[Lance]

Hi Lou,

I guess they are within their rights to communicate in which ever manner they see fit. It sounds like they are trying to push your lawyer fees up but they are also reducing your direct interaction with the matter which could be see as trying to help with your medical matters. Have a talk with your solicitor (who skilled in workplace matters) and see if this is normal.

To look broader at the matter it seems a common tactic for HR to put people on disciplinary review if they cause them trouble. I'm not saying its right but I was recently involved in a similar matter as a support member and the person I was supporting had merely questioned his PDR (which probably wasn't that bad) anyway he found himself on disciplinary review as well.

I was a bit shocked but in his favour I also took 18 pages of notes.

I hope you get this sorted.

 

[Rod]

I'd be writing to HR saying I have legal advice indicating I can and should write directly to the company with copies being sent to my lawyer. Should they wish to alter this arrangement they should indemnify me for all extra costs I incur as a result of their instructions.

 

[Lou S]

Hi Lance, thank you for your reply and your wishes.

The main part of my question is really whether the HR manager's instruction (to only communicate via my solicitor) can be classed as a "lawful direction" from a supervisor to a subordinate.

And yes, I'm aware of the tactics. There are many interesting links if you search something like "how to make your employee quit" - hints for those in management positions who should never have achieved such employment status. There are many good managers, but the fact that some managers are, really, failures, does not mean that good employees should leave.

And please accept that I'm no martyear or hero, or a saint or a fanatic.

• I regard what I do as important - I'm in IT and provide support to staff who deal directly with people with disabilities, the ones "at the coal face".
• I, personally, have no skills or aptitude to support people with disabilities, and recognise my limitations. To make a contribution, I do my best to support the great people who do have the required skills and aptitude.
• I enjoy the job that I do and am committed to doing it.
• and last (and perhaps really, least) I need the money that I earn.

I'm just an ordinary person doing the best I can to do something good. At the end of the day, the HR manager is an individual withing the organisation with all the normal failings of any other human being. Unfortunately, some of her failings include dishonesty, prejudice and, probably, low self esteem. Having become a HR manager, a powerful position, her character and skill failings are having a huge impact on others, including me.

 

[Rod]

You do not have to communicate through your lawyer. Keep sending the information/certificates directly to the HR manager, possibly via registered post. Keep a log of all correspondence you send in this way.

Legally the certificates/correspondence will be deemed to have been provided to the company and the company will not have a defence if they ignore them.

She may well compromise the company's position if she refuses to act on the information in an appropriate way. Sounds like she is in over her head.

 

[Lou S]

Hi Rod - thank you for your responses. So this is the latest:

The matter is listed for a conference at Fair work Australia for this Thursday, 2/3/2017. The HR manager is named as a person who, herself, has breached Fair Work legislation by some of her own actions. My immediate supervisor is also included as being in breach. So to clarify, the company is listed as a respondent, the HR manager and the immediate supervisor as the "offenders".

So what did the HR Manager do in response?

Note - The below activity is happening after the HR manager received notification from Fair Work, on 15/02/2017, that the matter had been referred to them and further advice from Fair Work, last Wednesday 22/02/2017, that the conference had been scheduled for 2/3/2017. That notification details over 30 breaches (by the HR manager and the immediate supervisor) that Fair Work will be considering.

The HR manager directed me around 4 PM on Friday 24/2 to attend a meeting, yesterday, 27/2/2017, to respond to 6 allegations (listed in her email). The HR manager said she was conducting an (she used the word "independent") investigation to determine if there was any basis to the allegations against me, including my failure to abide by her directions to me which I did not comply with.

The HR manager included, in the list of 6 allegations, that (you guessed it) I failed to obey her direction to only communicate with (email) her via my solicitor. "To ensure fairness" she was giving me an opportunity to address the 6 allegations and would take my responses into account when she made her final decision.

Apparently, I failed to abide by her instructions on 2 occasions and this was classed as 2 separate breaches in the list of 6 allegations that she was investigating "independently" and "to ensure fairness". The end of her email/letter threatens dismissal, if the HR manager finds that the allegations against me are proven.

The 27/2/2017 meeting took place (as required under the employer's policy), with the HR manager, my immediate supervisor and their solicitor. I attended with my solicitor as as support person (not for advice).

During the meeting, I requested to be allowed to respond to each allegation in writing, something the HR manager had a real problem with. After the fifth allegation (and receiving my request to respond in writing) the HR manager summarily dismissed me. Immediately, at this point, the HR manager's solicitor asked for a break so the 3 of them could have a chat.

When my solicitor and I were called back in, the HR manager withdrew the dismissal. She said that, as far as she was concerned, there were sufficient grounds to dismiss me, there and then, but that she had not laid the sixth allegation and she should have done that, to give me an opportunity to respond "in the interest of fairness".

The sixth allegation was laid by my immediate supervisor. After this, the HR manager agreed to allow a written response by 7.30AM (this morning) with the words "After I receive your written responses to our allegations by 7.30AM, I will let you know my decision at 8.30AM."

Needless to say, the last email from the HR manager, earlier today, was a summary dismissal - another addition to the list of breaches listed with Fair Work.

Rod - your comment about "Sounds like she is in over her head." ...... yep!.

Final point - advice from my solicitor (about the instruction from the HR manager to only communicate through my own solicitor) - "This sounds a bit is unusual" and "seems a bit strange". For me, this translates into - "This cannot be classed as a lawful direction". You cannot be regarded as being in breach of something which cannot be a "lawful direction".

I recently was reminded of the comment "If you've dug yourself into a hole, its better to stop digging." Roll on the Fair Work conference - no guarantees as to who "wins", but ...

 

[Rod]

Thanks for the update, looking forward to seeing how you go at Fair Work.

 

[Lance]

Final point - advice from my solicitor (about the instruction from the HR manager to only communicate through my own solicitor) - "This sounds a bit is unusual" and "seems a bit strange". For me, this translates into - "This cannot be classed as a lawful direction". You cannot be regarded as being in breach of something which cannot be a "lawful direction".

Hi Lou,

I'm not convinced it was an unlawful direction, I'm just inclined to agree with Rod and suggest she is in over her head. At the very least it should be seen as poor handling of the situation.

Good luck and I'm also looking forward to seeing how you go.

 

[Lou S]

Hi Lance,

I agree with you and I'm sorry if I gave the impression that I saw the direction as "unlawful".

Based on discussion with my solicitor, my understanding is that, as a general rule, a manager can issue various instructions that a subordinate is, mostly, required to carry out. An instruction that meets defined criteria is a "lawful direction".

The huge number of possible instructions makes it impossible to list individually in legislation. On the other hand, some instructions are excluded and can never meet the criteria of a "lawful direction".

A silly example - a manager's instruction "I want you to hit the person next to you" cannot be a "lawful direction".

A subordinate who fails to follow a lawful direction risks disciplinary action, but that action has to be proportionate to the seriousness of the breach.

The instruction to a subordinate to only send email via their solicitor is not unlawful. And, even if it does meet the "lawful direction" criteria, if ignored or disobeyed, is not one that should be included in a list of "offences" that justify dismissal. To do this is an "overreaction" and disproportionate the seriousness of the breach.

I'll keep up my posts - irrespective of the outcome. Aslo, depending on the restrictions after the Fair Work hearing, I'll post the details of the parties involved.

In my view, the confidentiality around these types of issues allows bullies and similar perpetrators to continue to damage people's lives and careers, either within the same organisation or when they move on.

The outcome is, frequently, that the "victim" of bullying proves their case, but still loses their job. After that, the perpetrator also leaves the organisation (sometimes very quickly or after a short period) under a range of different arrangements - (very rarely) dismissal, more frequently after a "quiet word" from upper management, or staff re-organisation etc.

The perpetrator then moves on to the next organisation - frequently with a glowing reference - so the original organisation can get rid of the perpetrator. The bully then continues on their merry way in their next job.

As I said, more to come...

Cheers

 

[Rod]

The instruction to a subordinate to only send email via their solicitor is not unlawful. And, even if it does meet the "lawful direction" criteria, if ignored or disobeyed, is not one that should be included in a list of "offences" that justify dismissal. To do this is an "overreaction" and disproportionate the seriousness of the breach.

Generally, instructions need to be both lawful and reasonable. The HR direction to send correspondence via your solicitor does not strike me as being reasonable. You have a direct legal relationship with the employer and as such are entitled to liaise directly with the employer. The employer can tell you who on their side to liaise with, but not your side.