HR manager to be grilled in test of boundaries
SYDNEY: The first major test of Labor’s right-to-disconnect laws has blown out to a two-day hearing with eight witnesses, including senior management, as the umpire takes a broad approach that could extend to stopping disciplinary action by employers.
The Fair Work Commission this week backed a rail driver’s bid to grill Pacific National’s HR manager over emails suggesting she was considering sacking him after he questioned the freight operator contacting staff after hours to confirm shifts the next day.
The order allowing the HR manager to be questioned, which was hotly contested, suggests employers will face heavy scrutiny over actions they take once a staffer refuses to answer calls, and could be forced to expend significant resources to defend themselves.
The Albanese government laws, introduced in 2024, empower workers to seek orders to stop bosses unreasonably contacting them. But they also extend to orders to halt disciplinary action and other employer responses.
Gadens employment partner George Haros said the case showed workers were using the right-to-disconnect laws for the enforcement of broader rights, similar to adverse actions claims against dismissal or performance management.
“That is, the laws are not really being used to halt employers contacting employees outside work hours, but rather they are being used as part of employees’ weaponry,” Haros said.
Hamilton Locke employment partner Timothy Zahara said employers needed to be aware that long-entrenched practices or policies carried risks under the new laws, and the ruling demonstrated the laws “cast a wide net” over employer actions.
The Pacific National driver alleged that days after he raised questions about after-hours contacts at a staff town hall meeting, he was subject to “manufactured complaints, fabricated reviews, performance management, probation threats, and a direction to stop making waves”.
Pacific National said the calls were required by its enterprise agreement, that staff allowances compensated for out-of-hours contact, and the practice was industry standard.
However, documents unearthed during the case showed that, five days after the town hall meeting and four days after the driver raised a dispute over the calls, the HR manager wrote to the driver’s supervisor about his probation in an email marked “high importance”.
The manager highlighted that “following our discussion”, the supervisor had advised her of complaints he had received about the employee.
“Please gather the relevant facts regarding these concerns and schedule a meeting with [the employee] to discuss them. I believe there was also negative feedback re: Town Hall.”
The email concluded that the employee “needs to be aware if [sic] the business may terminate during his probation”.
In a second email two days later, the HR manager suggested the supervisor discuss the driver’s “attitude and interaction” with the regional manager at the town hall.
The supervisor replied that “based on how active he has been with his ‘constructive’ feedback for Pacific National, I believe a sit down with [him] is warranted”.
He said he planned to “talk turkey” with the driver and flagged that another supervisor had engaged one of his colleagues to give a statement about the driver’s attitude to work.
The supervisor then sat down with the driver for what he said was “an informal chat”, but which the driver alleged was performance management with written notes.
The HR manager then instructed the supervisor by email to advise the driver he had not met role expectations and could be subject to “further management action, including consideration of the outcome of his probation”.
The driver said the emails contradicted Pacific National’s assurances to the Federal Circuit Court, in a parallel adverse action case he is taking, that it was not conducting performance management or disciplinary action and his job was not at risk.
Self-represented, he argued that the HR manager’s evidence was key to his case, which seeks orders to stop disciplinary action as well as after-hours contact.
Pacific National strongly resisted the HR manager taking the stand because it said the driver was effectively conducting a “dry run” for his adverse action case.
It argued the right-to-disconnect laws were concerned with the reasonableness of the employer’s contact, and calling the HR manager to testify would result in “significant time wasted”.
“To use the present proceedings for such an ulterior purpose would be an abuse of process that the commission ought not facilitate.”
But commissioner Alana Matheson said that if she found the driver’s refusal to answer Pacific National’s calls was reasonable, the law required her to consider the risk of the employer taking disciplinary or other action against the employee.
“If such action was taken because of his concerns raised about taking the call, which is a matter in contest, this is of apparent relevance to the assessment of the risk of disciplinary or other action in the context of an actual refusal,” she said.
She ordered the HR manager to take the stand, alongside the driver’s supervisor and regional manager, and extended the one-day hearing to two days, starting on April 20.
