Internal human resource advisors have an important role in assisting businesses to comply with the law and be responsible corporate citizens. However, there is often pressure on internal HR advisors to bring about certain commercial outcomes, eg to support termination or disciplinary action, regardless of objective merit or procedural fairness.
Internal HR advisors should keep in mind their duty to provide independent professional advice to their employers, just as external advisors do. The Fair Work Commission has recently reminded HR teams of this need to maintain appropriate detachment from operational staff. The FWC has emphasised that the proper role of a human resources department is to sit between impulsive managers baying for dismissal and the obligation of an employer to ensure procedural fairness – see Andrew McCouaig v Colliers International (SA) Pty Ltd T/A Colliers International [2019] FWC 1517 (8 March 2019), particularly at [175].
This detachment extends to considering the need to engage external investigators. Not every incident needs to be referred externally. However, there is a need to consider the seriousness of allegations, the potential for perceived bias or conflict and whether there is sufficient skill, experience and resources to conduct an investigation internally. Increasingly, investigators are being called on to account for their findings in subsequent legal proceedings and there is a need for transparency and thoroughness of investigation. This can sometimes be difficult for overstretched internal advisors.
Internal HR advisors should also be conscious that employees often have an expectation that HR will act as an independent referee for their concerns. Employees can be disappointed when they perceive this is not the case and HR can become a target themselves. These expectations need to be properly managed.
These competing pressures all occur against a backdrop of increased personal exposure for HR advisors to accessorial liability where they are wilfully blind or deliberately shut their eyes to breaches of the law. The Fair Work Ombudsman has warned that it has HR advisors in its sights and penalties have been imposed on employees personally by the courts in recent years. In these circumstances, HR advisors should resist inappropriate internal pressures simply to achieve commercial outcomes. Please contact us if you would like help in this area.