Sacking penalties set in concrete

A Melbourne concrete manufacturer has been ordered to pay almost $100,000 in penalties over the ‘humiliating’ sacking of a health and safety representative.

A Melbourne concrete manufacturer has been ordered to pay almost $100,000 in penalties, including $60,000 to the CFMEU, over the “humiliating” sacking of a health and safety representative made redundant after complaining to WorkSafe Victoria.

Federal Court judge John O’Callaghan found Melbourne Precast and its director, Tom Pich­ler, breached the Fair Work Act by dismissing Paul Hes and manufacturing a poor work rating to justify sacking him.

Mr Hes told the court that during the bushfires in January, the air quality in the yard was poor and employees stopped work on health and safety grounds. He said Mr Pichler shouted at the employees to “get back to work or you’re not getting paid”.

During a meeting on February 17 to elect Mr Hes as the health and safety representative, he said Mr Pich­ler came in and yelled at the workers for having the meeting, saying it should be held during a meal break.

Mr Hes telephoned WorkSafe, accusing Mr Pich­ler of threatening workers, “doing everything he can to intimidate us”, and failing to consult.

In a notice to staff, Mr Pich­ler said 14 people had been made redundant over the previous year because the company could not win enough jobs and a number of employees, including Mr Hes and two union organisers, “seem to not care about the overall survival” of the company.

Weeks later, he told workers that two or three of them would be made redundant. He later told Mr Hes he had been rated the company’s second-worst performing employee and would be made redundant.

Justice O’Callaghan found the dismissal to be upsetting and humiliating for Mr Hes, particularly because the reason given was false. He found the contraventions were serious, deliberate and had the potential to impact the safety of workers.

After earlier ordering Mr Hes be reinstated and awarding $27,000 for economic loss, he also awarded Mr Hes a further $10,000 for non-economic loss and ordered Mr Pichler and Melbourne Precast to pay $60,000 in penalties to the CFMEU.

Mr Pichler told The Australian on Tuesday that the penalties were a “tipping point” for the company, which was struggling because of the economic impact of COVID-19. He said the penalties and court proceedings, where he represented himself, would cost him about $120,000.

“I see this being a tough period to trade through. The penalties are a tipping point, a $100,000 kick in the guts,” he said, adding that COVID-19 restrictions were “decimating business owners”.

Mr Pichler told the court “any significant fine /penalty will likely lead to MPC having to shut its doors and employees now on JobKeeper will lose their jobs, which would be a real shame in the current environment”.

Justice O’Callaghan said Mr Pichler had not proved that Melbourne Precast’s financial difficulties were as grave as he claimed.

CFMEU Victorian secretary John Setka said the decision was a great result for the union and its organisers and it was “great to see Paul compensated for the wrongdoing from Melbourne Precast Concrete … our job is to protect our delegates and members and this outcome demonstrates that.”