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

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

The employer failed to prove that Mr Hes's workplace rights (as HSR and in making complaints to WorkSafe and about his employment, and taking personal leave) were not a substantive and operative reason for his dismissal. The court rejected the employer's evidence as untruthful, especially regarding the skills evaluation document. The employer also breached consultation and redundancy provisions in the enterprise agreement, and the director, Mr Pichler, was accessorily liable for the contraventions he was knowingly involved in.

Parties
First Applicant: Construction, Forestry, Maritime, Mining and Energy Union; Second Applicant: Paul Hes; First Respondent: Melbourne Precast Concrete Nominees Pty Ltd; Second Respondent: Thomas Pichler
Jurisdiction
Australia
Judgment Date
06 July 2020
Procedural Posture
Civil / Liability Judgment
Outcome
Declarations made of contraventions of ss 340(1)(a), 340(1)(b), and 50 of the Fair Work Act 2009 (Cth); not a final order as to relief; proceeding to be relisted for hearing on relief.
Legal Topics
Adverse Action, General Protections, Redundancy, Workplace Rights, Consultation Requirements, Occupational Health and Safety, Accessorial Liability
Employment Law Industrial Law Adverse Action General Protections Redundancy Workplace Rights Consultation Requirements Occupational Health and Safety +1 more

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Parties

Construction, Forestry, Maritime, Mining and Energy Union

First Applicant

Paul Hes

Second Applicant

Melbourne Precast Concrete Nominees Pty Ltd

First Respondent

Thomas Pichler

Second Respondent

Procedural Posture

Civil / Liability Judgment

Legal Issues

  1. 1 Whether the dismissal of Mr Hes contravened s 340(1)(a) and s 340(1)(b) of the Fair Work Act 2009 (Cth) by reason of his workplace rights or to prevent the exercise of such rights
  2. 2 Whether the dismissal breached consultation and redundancy provisions in the applicable enterprise agreement and thereby contravened s 50 of the Fair Work Act 2009 (Cth)
  3. 3 Whether Thomas Pichler was accessorily liable under s 550 of the Fair Work Act 2009 (Cth) for the employer's contraventions

Ratio Decidendi

The employer failed to prove that Mr Hes's workplace rights (as HSR and in making complaints to WorkSafe and about his employment, and taking personal leave) were not a substantive and operative reason for his dismissal. The court rejected the employer's evidence as untruthful, especially regarding the skills evaluation document. The employer also breached consultation and redundancy provisions in the enterprise agreement, and the director, Mr Pichler, was accessorily liable for the contraventions he was knowingly involved in.

Court Disposition

Declarations made of contraventions of ss 340(1)(a), 340(1)(b), and 50 of the Fair Work Act 2009 (Cth); not a final order as to relief; proceeding to be relisted for hearing on relief.

Orders

  • Declarations that the first respondent contravened s 340(1)(a) and s 340(1)(b) of the Fair Work Act 2009 (Cth) by dismissing Mr Hes because of and/or to prevent the exercise of his workplace rights.
  • Declarations that the first respondent contravened s 50 of the Fair Work Act 2009 (Cth) by dismissing Mr Hes contrary to consultation and redundancy provisions in the enterprise agreement.