HSR Safety Representative Redundancy Termination Overturned by FWC

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HSR Safety Representative Redundancy Termination Overturned by FWC

The Fair Work Commission has accepted an employee’s claim that his selection for redundancy and subsequent termination was unfair,
predicated by his activities as an elected Workplace Health & Safety Representative (HSR) rather than the reason he was given as being a “poor performer”.

The employee had been employed by Melbourne Precast Concrete (MPC), a manufacturer of precast concrete products, for nearly eight years and had an unblemished discipline and performance record. In 2016, he was initially elected as an HSR in accordance with Victorian OHS legislation and the company’s enterprise bargaining agreement. During 2019, he relinquished the role after being promoted to Production Manager; however, he returned to his original position and was re-elected by his colleagues as the HSR in February 2020.

There was no doubt that the business was struggling to compete and had, in fact, made a number of employees redundant prior to his
selection for redundancy and termination in March 2020. However, his argument, which Justice O’Callaghan accepted, was that he was selected for redundancy because of his activities as the HSR, which had been causing increasing concerns to management within the business.

Early in 2020, he had contacted WorkSafe Victoria in response to what he viewed as aggressive behaviour by one supervisor (demanding
employees return from a work stoppage around air quality) and his perception that management consistently failed to consult with workers about health and safety matters. Shortly after this, the same supervisor interrupted a meeting hosted by the HSR to discuss an incident of alleged workplace bullying and demanded that the employees immediately cease the meeting, and return to their normal duties.

It was acknowledged that these episodes were known to management; indeed, the worker had actually notified his manager of each

On 20 March 2020, the worker was summoned to the main office and told of his termination by his manager as follows “I’m sorry, Paul but I
have to let you go. You’re one of the poor performers”.  The worker objected to the validity of this decision, also claiming that the business ignored one of the provisions of the EBA that mandated seniority has to be considered when determining which workers are to be selected for redundancy.

Quite simply, as stated by J O’Callaghan in his determination, “The purported justification for (his) dismissal – that he was a
poor performer -is spurious. No complaint had ever been made about (his) performance”.

The FWC also accepted the argument the termination constituted adverse action against the worker by dismissing him for reasons
linked to the exercise of a workplace right (being his contact with WorkSafe, as well as his activities as an HSR).

The FWC has yet to determine the penalties to be imposed on MPC in this case, but they are likely to be significant.

CFMMEU vs Melbourne Precast Concrete Nominees Pty Ltd [2020] VID227 of 220 (6 July 20200)

For queries about redundancy selection or any other employment matters, please contact Dean Cameron at Workforce Advisory Lawyers –
We Know Employment Law on 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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