Safety rep sacked after calling WorkSafe wins reinstatement
Paul Hes had worked for nearly eight years at Melbourne Precast, a precast concrete factory in Carrum Downs, Victoria. On 18 February 2020 the yard workers elected him their health and safety representative. Later that day he rang WorkSafe about how management had handled a day of bushfire smoke in January, and what he called a failure to consult on safety.
The director, Mr Pichler, was told of the complaint. The same day his consultants emailed him about "the safety rep who is 'running off' to WorkSafe". On 21 February he sent all staff a notice naming Mr Hes among people who "seem to not care" about the company's survival.
On 13 March Mr Pichler announced two or three redundancies. On 20 March he called Mr Hes in, called him a poor performer and showed him a score sheet giving him 19 out of 30.
The construction union, the CFMMEU, sued alongside him in the Federal Court. The company then had to prove the dismissal was not for the reasons alleged.
It could not. Mr Pichler swore Mr Hes had the second-lowest score; a worker who scored 18 kept his job. The judge found the sheet was a contrivance to hide the real reason, that Mr Pichler's account "defies belief", and that Mr Hes's work had never been criticised. He was sacked for his safety role and WorkSafe complaints, in breach of s 340. The company also broke its enterprise agreement by failing to consult, and Mr Pichler was personally liable.
On 21 August 2020 the court ordered the company to give Mr Hes his job back with no break in service, and to pay $23,631.15 in lost wages and $3,716.03 in superannuation. On 14 September 2020 it added $10,000 for hurt and humiliation, and penalties of $50,000 against the company and $10,000 against Mr Pichler, payable to the union.
If you are chosen for redundancy soon after raising safety concerns or contacting a regulator, it is worth asking how the selection was made and keeping a copy of any document you are shown.
A published decision of the Federal Court of Australia, retold in plain English. Lawcaptain did not act in this case. Every outcome depends on its own facts. General information, not legal advice about your situation.
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