Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Mr. Hes, a former employee of Melbourne Precast Concrete Nominees Pty Ltd, sought remedies for his alleged unfair dismissal. The dispute arose from Mr. Hes' dismissal following his role as a health and safety representative (HSR) under the Occupational Health and Safety Act 2004 (Vic) and his complaints to WorkSafe Victoria regarding unsafe working conditions. The central legal issues were whether Melbourne Precast could prove that Mr. Hes' dismissal was not related to his role as HSR or his complaints, and whether the decision-maker was involved in the alleged contraventions of the Occupational Health and Safety Act.

The Commission examined the evidence provided by Mr. Hes and his colleagues, alongside Mr. Pichler's affidavit, who was involved in the decision-making process at Melbourne Precast. Mr. Pichler's evidence focused on the financial difficulties faced by the company and the process of redundancies, asserting that Mr. Hes' dismissal was based on his low score in an employee skills and attributes evaluation, unrelated to his role as HSR. However, the Commission found inconsistencies in Mr. Pichler's evidence and noted that other employees had left for reasons unrelated to redundancy. The Commission concluded that the employer had not substantiated its claim that Mr. Hes' dismissal was unrelated to his HSR role and the complaints he made. The evidence suggested a pattern of unsafe working conditions and a retaliatory motive behind Mr. Hes' dismissal.

As a result, the Commission found in favour of the applicants, ruling that Mr. Hes was unfairly dismissed and that Melbourne Precast contravened the Occupational Health and Safety Act. The Commission ordered Melbourne Precast to reinstate Mr. Hes to his former position, provide him with back pay, and compensate him for the distress and inconvenience caused by the dismissal. Additionally, the company was directed to take specific steps to ensure compliance with occupational health and safety laws in the future.