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Company and director fined for wrongly sacking HSR

Ordered to compensate HSR for the distress he experienced when they sacked him.
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Company and director fined for wrongly sacking HSR

Company and director fined for wrongly sacking HSR

25 September 2020

By Gaby Grammeno

A Melbourne manufacturer of concrete products and its director have been fined and ordered to compensate a health and safety representative for the distress he experienced when they sacked him on a false pretext, after he raised health and safety concerns with WorkSafe Victoria. The Judge highlighted the important role of HSRs and imposed a relatively heavy fine.

The health and safety complaint

The HSR was concerned about the health risks posed by bushfire smoke early this year. The workplace had been visited by a union organiser who noted that the poor air quality was a worry because of the smoke.

As a result, management directed employees working outside to stop work, but a short time later he told them to get back on the job, saying he wouldn’t let the union harm his business.

This prompted a group of his co-workers to approach the worker and ask him to take on the role of HSR, as they wanted someone who’d resist a direction seen as unsafe and argue their case with management.

He agreed, but after the director of the company interrupted the meeting held to appoint him as HSR, he contacted the health and safety regulator to report the smoke incident and also to ask for an inspector to visit the workplace to deal with it and with other WHS concerns. In doing so, he was legitimately exercising his powers and entirely within his rights as an HSR.

The company’s response

Not long after that, the director announced that the company needed to let some workers go due to the decline in business. Management claimed – falsely, as it turned out – that the HSR was the second worst-performing employee in the company, according to a performance appraisal system.

The HSR then lodged a claim of adverse action, saying he’d been sacked on the basis of an untrue claim of poor performance, when the real reason was that he’d contacted WorkSafe.

The view of the Court

After hearing the evidence, the Federal Court found that the man’s employer had contrived to get rid of him, concealing the real reason and pretending it was due to poor performance. The performance appraisal system was not designed to identify employees for redundancy and had not showed the HSR to be a poor performer. If anything, his job performance was above average. Also, others who scored lower than him were not sacked.

The company and its director were liable for failing to comply with both its consultation and selection requirements under the relevant enterprise agreement.

In August 2020, the Court ordered the company to reinstate the HSR and pay him more than $27,000 in lost wages and superannuation. The Court relisted the case to decide on a remedy for the employee.

In September, the Judge made further orders after finding that the man had been dismissed because of his actions as a health and safety representative. He noted that the HSR role is an important one, and by dismissing him, the company denied him the ability to exercise his functions as HSR. They also denied the other employees of the business the assistance of their chosen representative in relation to health and safety matters.

The Judge also found that the HSR was dismissed because he made complaints to WorkSafe Victoria, and that the company’s conduct ‘signalled to other employees that such complaints would be met with retaliation’, potentially affecting the workers’ safety.

‘Such contraventions are necessarily serious,’ he said, finding that they were also deliberate and premeditated.

The Court ordered the company to pay the worker compensation for non-economic loss (that is, for being unfairly subjected to the shock, hurt and humiliation of being sacked) of $10,000, and to pay the union a penalty of $50,000 for contravening s 340(1) of the Fair Work Act 2009 (Cth).

The company’s director was also fined – he was ordered to pay the union $10,000 for his breach of the Fair Work Act.

These fines were on top of the $27,000 in lost wages and superannuation the company was previously ordered to pay the worker.

The bottom line: It is against the law to sack a health and safety representative for exercising his powers and functions in that role.

Read the judgment

Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 3) [2020] FCA 1309 (14 September 2020)

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