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Where there’s smoke, there’s (unfair) firing

Federal Court found the employer manufactured the redundancy to get rid of him.
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Where there’s smoke, there’s (unfair) firing

Where there’s smoke, there’s (unfair) firing

17 July 2020

By Mike Toten

A company made a health and safety representative's (HSR) role redundant based on inferior job performance during the January 2020 bushires. However, the HSR claimed adverse action due to him raising a workplace health and safety concern with WorkSafe Victoria and the Federal Court found in favour the employer manufactured the redundancy to get rid of him.

Facts of case

During the bushfires, a union organiser visited the work site in Melbourne and raised issues about the poor air quality due to the smoke. A Director of the employer ordered employees working outside to cease work. However, about 20 minutes later he ordered them back to work, adding that he would not let the union harm his business.

A group of co-workers then approached the employee and asked him to take over the role of HSR, because they wanted someone who would stand up to the Director. When the Director interrupted a second meeting held to appoint him as HSR, the employee contacted WorkSafe Victoria to report the smoke incident and also ask for an Inspector to visit the workplace to deal with it and other OHS concerns.

The Director subsequently announced that the employer needed to make redundancies due to loss of business. The employee was one of those selected, with the employer arguing that his job performance was subpar according to a performance appraisal report.

The employee then lodged a claim of adverse action, claiming it was taken because he had contacted WorkSafe. The employer claimed it was unaware of the contact, but an email was located that proved that the Director had complained to an external workplace relations consultant about him doing so, and asked the consultant for advice on how to deal with him.

Evidence also revealed that the performance appraisal system relied on by the employer was not intended to select employees for redundancy, nor had it identified the employee as a poor performer. There was other evidence that, if anything, his performance was above average. Also, an employee who scored lower than him was not retrenched, nor were several employees who had less seniority and length of service.


The Court described the employer’s actions as a “sham and contrivance” designed to conceal the real reason for getting rid of the employee, and found that the employer took adverse action against him for contacting WorkSafe, acting as an HSR and taking personal leave. Even if there were financial problems for the business, this did not explain why the employee was selected ahead of others for redundancy.

The employer also failed to comply with both its consultation and selection requirements under the relevant enterprise agreement when it made him redundant. Both the Director and the company were liable for the breaches.

The employer failed to prove that the reasons for dismissal alleged by the employee were not the substantive and operative reasons for dismissal.

The Court relisted the case to assess a remedy for the employee.

The bottom line: in cases where adverse action is found to have been taken against an employee, the onus of proof is on the employer to show that the reasons prohibited by the Fair Work Act 2009 (in this case acting as an OHS rep and complaining to WorkSafe about OHS issues at the workplace) were not substantive and operative reasons for taking the action. Note that they do not have to be the only reasons.

Managers involved in taking adverse action against employees can be held jointly liable for breaches of the Act.

Read the judgment

Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd [2020] FCA 931, 6 July 2020

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