Near Maximum Fines for Employer’s “Contrived” Dismissal of Safety Rep

In July 2020, the Federal Court fined an employer and director a total of $60,000 for fabricating the redundancy of an employee after he had lodged complaints with a workplace safety regulator. The employee was successful in his adverse action claim against Melbourne Precast Concrete Nominees Pty Limited (the Company) and its director, after they made him redundant due to his exercising of his workplace rights in reporting concerns with WorkSafe Victoria, in his position as health and safety representative.

The Court found that the Company implemented a “contrived” selection process to select the “stellar” employee for a redundancy dismissal. The Company attempted to argue that it had used a skills and attributes matrix to do so, however Justice O’Callaghan found “that [the director] manufactured [the worker’s] poor score on the ’employee skills and attributes evaluation’ document, and added [the production manager’s] name and signature”. The Court found the director’s claims that the Company had followed due process were “demonstrably untrue”.

With maximum available penalties of $63,000 for the Company and $12,600 for the director, Justice O’Callaghan decided to fine the Company and the director $50,000 and $10,000 respectively, nearing the maximum threshold, due to the severity and seriousness of the “deliberate and premeditated” contraventions of s 340 of the Fair Work Act 2009 (Cth) (the Act).

The Company was also directed to reinstate the employee and make backpay payments from when he was dismissed.

Upset and Humiliation Compensation

In September 2020, Justice O’Callaghan ordered a further $10,000 to be paid to the employee to compensate for his distress, shock, hurt and humiliation. The fact that the employee was falsely labelled a poor performer exacerbated his emotional distress contributed to this further order.

This decision is a reminder that the Federal Court is intolerant of flagrant breaches of the Act by employers. This case confirms that matters involving deliberate attempts to act unlawfully under the guise of “procedure”, are viewed as conveying blatant contempt for the Act and will be reprimanded heavily.

If you have any questions about employees raising health and safety issues, please do not hesitate to contact Nick StevensLuke Maroney or Bernard Cheng.

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