As HR practitioners play more powerful and strategic roles in their organisations, they become more vulnerable to legal risks. Under what circumstances might they be held personally liable for breaches of workplace law?

As HR practitioners move closer to the centre of organisational governance, they are playing a greater role in strategic and risk-related decisions, from psychosocial safety to complex industrial relations. While this presents exciting opportunities, it also introduces legal risk. 

Under Australian law, it’s not just organisations that may be liable for breaches of workplace law, but also the individuals involved in those breaches, including HR. 

Below, HR and employment law experts share five factors that can influence whether HR is held personally liable for workplace law breaches.

1. Being “involved” in a breach of workplace law

Under WHS laws, personal liability arises where HR are deemed “officers”. 

“HR executives wouldn’t usually think of themselves as officers, but the definition of officers is quite wide and could catch some HR executives,” says Melbourne. 

The definition encompasses individuals who participate in decision-making that substantially affects the organisation or have the capacity to significantly affect the organisation’s financial standing.

“[An officer] has a positive duty of due diligence to ensure compliance,” says Daymond. “Personal liability can arise if you knew about a risk and failed to act; there were no proper systems to identify and control risks; [and/or] you didn’t ensure that policies, training, reporting and investigations occurred.” 

Psychosocial risks are treated similarly to physical safety breaches and, in extreme cases, criminal penalties may apply.

However, under other laws such as whistleblower protections and discrimination laws, HR do not need to be officers in order to be held liable. Under s 550(1) of the Fair Work Act 2009 (FW Act), a person may be liable for a contravention of workplace law where that person has been “involved” in that contravention. 

The section is wide-reaching, applying to all civil remedy provisions in the FW Act – from those covering National Employment Standards and general protections to those covering awards and enterprise agreements. 

The meaning of “involved”, defined under s 550(2), is also broad. 

“If you knowingly help, authorise, encourage or turn a blind eye to a breach of workplace laws, you can be held personally responsible, even if you didn’t directly commit the breach yourself,” says Gabby Daymond, founder, HerHR. 

2. Acting with knowledge or intention

It’s important to note that some degree of knowledge is required. 

“It’s not just inadvertent breaches – knowledge and intention play a part,” says workplace law specialist Sean Melbourne. 

Where an HR practitioner is accused of involvement in a breach, they will be a respondent to legal proceedings in their personal capacity. 

“This means they would potentially be exposed to an adverse judgment in which they could be ordered to pay civil penalties,” says Dianne Banks, Partner, Employment Law, Gilbert + Tobin. 

“As part of the general uptick in general protection claims that has recently been reported on, we have noticed individuals increasingly being named as respondents under s 550 for strategic purposes, because it tends to increase the employer’s desire to settle the matter.”

3. Actively participating in unlawful conduct

Federal Court cases provide important examples of the nature of conduct that, for HR practitioners, may enliven s 550. 

In a 2023 case, the Fair Work Ombudsman brought proceedings against a company and its HR manager for breaches of the FW Act against 17 vulnerable migrant workers. These included deliberately underpaying a total of $157,025, creating false and misleading payslips, and requiring some employees to work unreasonable hours.

The HR manager had trained the payroll officer to create the fraudulent payslips.

She argued that s 550 should not apply because she was a “cog in [the company’s] wheel” and had followed the director’s instructions. However, the court rejected this.

“It found that she understood the conduct was illegal but chose to participate in it,” says Melbourne. “Her active involvement, knowledge and instructions to others went far beyond simply following an order.” 

Consequently, the HR manager was personally ordered to pay a fine of $105,084.

“Personal liability can arise if you knew about a risk and failed to act; there were no proper systems to identify and control risks; [and/or] you didn’t ensure that policies, training, reporting and investigations occurred.” – Sean Melbourne, workplace law specialist

4. Making unlawful termination decisions

Termination decisions that fail to follow proper process or consider workplace rights can expose HR to personal liability.

In 2022, a union brought a case against a company and its HR manager for breaching the FW Act’s general protections provisions, which provide that employees may not be terminated for exercising their workplace rights. 

After an employee became distressed following a performance meeting, the HR manager conducted a welfare check. The employee’s husband indicated she would not return to work and would “go to Fair Work”.

The HR manager then emailed the employee, stating her resignation had been accepted. 

The employee replied, stating she did not want to resign, but the HR manager proceeded with the termination. 

“[The judge] found that the HR manager had treated [the employee] as having resigned because he was concerned that proceedings would be commenced in the Fair Work Commission,” says Banks. 

This comprised a breach of general protections. The HR manager was held personally liable, because he was the only person on the call with the employee’s husband, and, ultimately, decided to terminate her employment.

“The court [also noted] that he had failed to undertake the basic requirements expected of an HR professional. This included incorrectly assuming the husband had the authority to speak for his wife and not making any effort to verify this with the employee directly,” says Melbourne. 

The HR manager was ordered to pay a personal penalty of $7,560.

5. Purposefully overlooking payroll inaccuracies

Another area that’s important to watch is payroll accuracy. Conduct that could get HR practitioners into hot water includes “continuing to use a known under-resourced payroll system without escalation, treating minor discrepancies as too small to worry about rather than system failures, and ignoring issues with award interpretation”, says Daymond. 

Molehill-sized inaccuracies can turn into mountains over time. 

“Often where we assist clients with substantial underpayment remediation projects, the underpayment stems from relatively minor decisions taken several years prior where the underpayment has then compounded over a significant period,” says Sam Harvery, Senior Employment Lawyer, Gilbert + Tobin. 

Where an HR practitioner is aware of such inaccuracies, but turns a blind eye to them, they may be personally liable.

Another area where this could occur is employee overtime. 

“Working unreasonable hours is unlawful under the National Employment Standards,” says Melbourne. “If employees are consistently working more than 38 hours a week plus unreasonable additional hours, and an HR professional knows about it yet allows it to continue, I can see the potential for them to become liable.”

Actions that can get HR into hot water include “signing off on rosters that consistently exceed maximum weekly hours without agreement or overtime, approving ‘availability’ expectations that amount to unpaid on-call work, and accepting pressure from operations to fill labour shortages with unpaid pre-start, handover, or lock-up time”, says Daymond. 

Reducing personal risk: HR’s checklist

Mitigating the risk of personal liability requires a deliberate and structured approach.

Recommended actions include:

• Documenting thoroughly. “If you raise an issue and get pushback from the business, you should keep a record, so you can show you took action,” says Melbourne.
• Embedding reporting lines. “HR should provide formal written reports to a governance body,” says Daymond. “[These should] include not just lag data, but leading indicators, such as excessive hours, exit interview themes, stress complaints and caseload spikes, and [you should] highlight red-amber-green risk status each quarter.”
• Creating internal checks. Examples may include “implementing dual sign-off for termination decisions; requiring manager accountability for accurate timekeeping and record-keeping; and building business ownership into HR processes, such as line managers completing investigation templates”, says Daymond.
• Conducting due diligence on payroll and award interpretation, such as “implementing annual external reviews of award coverage, classifications and overtime triggers; requiring written sign-offs from payroll or finance on any changes; and avoiding being responsible for interpretation and execution without second-level validation”, says Daymond.
• Strengthening WHS governance. “Introduce quarterly psychosocial hazard reviews with HR, WHS and operations; record risk controls, not just complaints; and [determine] clear ownership [of risk mitigation].”
• Knowing when to seek independent external advice. “Trigger points [may] include sham contracting concerns, pay disputes involving vulnerable workers, adverse action complaints, and any request to ‘quietly terminate’ someone,” says Daymond. “Protect yourself by putting the following in writing: ‘This matter requires legal review before proceeding.’”

The increasing potential for HR practitioners to be held personally liable for breaches of workplace law may seem daunting. However, it is an indication of just how powerful HR has become in organisational governance. 

By understanding the legal risks, and taking steps to mitigate them, HR can become even more effective and influential changemakers in their organisations.

This article first appeared in the Feb/March 2026 edition of HRM Magazine. All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.

AHRI members have access to professional indemnity insurance to protect them in instances where they could be held personally liable. Find out more here.