This is something that most HR Managers will have had happen to them over the course of their career: you’re approached by a “Boss” (MD, CEO, President, C-Suite Manager, you get the picture) and asked to implement a course of action which you know is wrong. It may be wrong because it’s illegal, because due process has not been followed, or because it’s a violation of the Organisation’s own values, policies or procedures. Whichever way you look at it, it’s wrong.
But how are you, the HR Manager and an employee, supposed to deal with this inherently conflicting situation? Do you do what is perceived to be your job, and simply carry out the course of action? Do you follow your professional ethical obligations that require you to abide by a Code of Ethics [1], but which may mean you refuse to implement a course of action? Do you follow your workplace Code of Conduct obligations? Do you, as the Australian Human Resource Institute Chairperson Peter Wilson wrote, do what is best for the Organisation, not what is best for the boss?
All employees – management roles included - have an inherent requirement to follow reasonable instructions issues to them by Management. However, HR is one of few professions where not following a reasonable instruction may – at times - be in the best interests of the Organisation.
Peter Wilson’s article “HR’s allegiance is to the company, not the boss [2]” made reference to HR going over the head of Senior Management and directly engaging the Board in situations where management is perceived to have a conflict of interest in resolving the matter at hand. Peter correctly commented, “Any failure to respect an employee’s right to fair treatment invites workplace cynicism” as well as lawyers.
But this only works if your Organisation is big enough to have a board. What do you do when there is no internal higher authority?
Janine Webster, Chief Counsel of the Fair Work Ombudsman, commented at a recent seminar held by lawyers FCB[3], that HR professionals risk of being held liable for failures under the Fair Work Act had grown, with a now increased risk of HR professionals being named as accessories in matters filed with the Fair Work Ombudsman. This means that if HR professionals do what Management wants, as opposed what is legally right, they may be named as accessories along side the business owners/Directors in investigations into breaches of workplace law.
So it’s a tricky situation when you are told by a Boss that they don’t care if what they are asking you to do is wrong, they just want you to do it and they’ll accept whatever risks come their way. Because it’s not just about telling the boss that they haven’t followed the ‘3 warnings’ performance management policy. It’s also about protecting yourself from risk that your organisational knowledge and actions will bind you together with the boss as an accessory to breaches of the Fair Work Act, the possibility of loosing your professional accreditation and the chance of being personally fined a large sum of money. While this might sound like you’re doing what is best for you as opposed to what is best for the boss, HR professionals who conduct themselves in an ethical manner will always be doing what is in the best interests of the Organisation.
So, as is often the case, what advice can I give to people who find themselves stuck between that rock and a hard place of doing the “HR” right thing as opposed to what the boss tells you to do?
Do:
Ask for time: before actioning anything, ask for time to review all the information about why Management wants to implement the course of action, and to come back with your own assessment of the situation
Do your research: don’t take someone else’s word for it. Look into the background of the situation at hand discretely: pull the employee files; ask for access to other records as appropriate. If you don’t do it now, you might find you have to do it later if a complaint is made or a lawyer contacts you on behalf of their client.
Ask why the course of action the boss is proposing is thought to be appropriate. They may not be aware of why what they are asking HR to do is considered wrong.
Make notes and diary entries about times, dates & locations of any discussions held and summarize these discussions.
Provide evidence to back up any suggestions for alternate courses of actions. These could be Award or EBA clauses, sections of the Fair Work Act or other legislation as well as the Organisation’s own policies and procedures.
Provide information to support why a course of action is risky: such as opening up the Organisation to claims of unfair dismissal, claims of unfair or harsh treatment, and/or huge fines if held liable for legislative breaches.
Consult a mentor if you have one. Confidentially ask for help on how to manage the situation from someone who’s been in the same boat.
Don’t:
Panic. This is your job. Even if Management don’t realise it yet. You are there to mitigate risk to the organisation, even if at times the risk is created by the Organisation.
Give into pressure. Even if time is of the essence, don’t be pressured into something you know is wrong.
[3] http://www.fcbgroup.com.au/event/test/ held in Melbourne on Monday 17 March 2017 at the RACV Club, Collins Street Melbourne.