FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd [2020] FCA 931
ORDERS
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Applicant PAUL HES Second Applicant | ||
AND: | MELBOURNE PRECAST CONCRETE NOMINEES PTY LTD First Respondent THOMAS PICHLER Second Respondent | |
DATE OF ORDER: |
THE COURT DECLARES THAT:
1. Melbourne Precast Concrete Nominees Pty Ltd (Melbourne Precast) contravened s 340(1)(a) of the Fair Work Act 2009 (Cth) (FW Act) on 20 March 2020 by dismissing Paul Hes (Mr Hes) because he had a workplace right as he had a role and responsibility as a health and safety representative under a workplace law, being the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and/or under a workplace instrument, being the Melbourne Precast Concrete Nominees Pty Ltd and the CFMEU (Victorian Construction and General Division) Precast Panel Enterprise Agreement 2016-2018 (Agreement).
2. Melbourne Precast contravened s 340(1)(a) of the FW Act on 20 March 2020 by dismissing Mr Hes because he had exercised a workplace right by making complaints and/or inquiries to WorkSafe Victoria, being a body having the capacity under the OHS Act to seek compliance with the OHS Act.
3. Melbourne Precast contravened s 340(1)(a) of the FW Act on 20 March 2020 by dismissing Mr Hes because he had exercised a workplace right by making complaints and/or inquiries in relation to his employment.
4. Melbourne Precast contravened s 340(1)(b) of the FW Act on 20 March 2020 by dismissing Mr Hes to prevent him from exercising his workplace right to make complaints and/or inquiries to WorkSafe Victoria, being a body having the capacity under the OHS Act to seek compliance with the OHS Act.
5. Melbourne Precast contravened s 340(1)(b) of the FW Act on 20 March 2020 by dismissing Mr Hes to prevent him from exercising his workplace right to make complaints and/or inquiries in relation to his employment.
6. Melbourne Precast contravened s 340(1)(b) of the FW Act on 20 March 2020 by dismissing Mr Hes to prevent him from exercising his workplace rights as a health and safety representative.
7. Melbourne Precast contravened s 340(1)(a) of the FW Act on 20 March 2020 by dismissing Mr Hes because he had exercised a workplace right by taking personal leave.
8. Melbourne Precast contravened s 50 of the FW Act on 20 March 2020 by dismissing Mr Hes in circumstances where it failed to comply with the consultation obligations imposed by clause 11 of the Agreement.
9. Melbourne Precast contravened s 50 of the FW Act on 20 March 2020 by dismissing Mr Hes in circumstances where it failed to comply with the obligations imposed in relation to redundancy by clause 19 of the Agreement.
10. The second respondent (Mr Pichler) was involved in Melbourne Precast’s contraventions of s 340(1)(a) of the FW Act on 20 March 2020, other than the contravention described in declaration 7, and is taken by s 550 of the FW Act to have contravened s 340(1)(a) of the FW Act on 20 March 2020.
11. Mr Pichler was involved in Melbourne Precast’s contraventions of s 340(1)(b) of the FW Act on 20 March 2020, and is taken by s 550 of the FW Act to have contravened s 340(1)(b) of the FW Act on 20 March 2020.
12. Mr Pichler was involved in Melbourne Precast’s contravention of s 50 of the FW Act on 20 March 2020 by dismissing Mr Hes in circumstances where it had failed to comply with the consultation obligations imposed by clause 11 of the Agreement, and is taken by s 550 of the FW Act to have contravened s 50 of the FW Act on 20 March 2020.
13. Mr Pichler was involved in Melbourne Precast’s contravention of s 50 of the FW Act on 20 March 2020 by dismissing Mr Hes in circumstances where it had failed to comply with the obligations imposed in relation to redundancy by clause 19 of the Agreement, and is taken by s 550 of the FW Act to have contravened s 50 of the FW Act on 20 March 2020.
the court orders that:
14. The proceeding be relisted for a hearing on the question of relief on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
O’CALLAGHAN J:
Introduction
1 The first respondent (MPC or Melbourne Precast) conducts a precast concrete manufacturing business. It manufactures precast concrete products at a worksite in Carrum Downs, Victoria. The second respondent, Mr Pichler, is a director of MPC.
2 By an amended originating application dated 5 June 2020, the applicant union (the CFMMEU) and Mr Hes (collectively, the applicants) seek the following declarations against MPC and Mr Pichler (collectively, the respondents):
On the grounds stated in the statement of claim, the Applicant claims:
1. Declarations pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (FC Act) that:
1.1 Melbourne Precast Concrete Nominees Pty. Ltd. (Melbourne Precast) contravened s 340(1)(a) of the Fair Work Act 2009 (Cth) (FW Act) on 20 March 2020 by dismissing Paul Hes (Mr Hes) because he had a workplace right as he had a role and responsibility as a health and safety representative under a workplace law, being the Occupational Health and Safety Act 2004 (Vic) and/or under a workplace instrument, being the Melbourne Precast Concrete Nominees Pty Ltd and the CFMEU (Victorian Construction and General Division) Precast Panel Enterprise Agreement 2016-2018 (Agreement);
1.2 further, or in the alternate, Melbourne Precast contravened s 340(1)(a) of the FW Act on 20 March 2020 by dismissing Mr Hes because he had exercised a workplace right by making complaints and/or inquiries to WorkSafe Victoria, being a body having the capacity under the OHS Act to seek compliance with the OHS Act;
1.3 further, or in the alternate, Melbourne Precast contravened s 340(1)(a) of the FW Act on 20 March 2020 by dismissing Mr Hes because he had a [sic] exercised workplace right by making complaints and/or inquiries in relation to his employment;
1.4 further, or in the alternate, Melbourne Precast contravened s 340(1)(b) of the FW Act on 20 March 2020 by dismissing Mr Hes to prevent him from exercising his workplace right to make complaints and/or inquiries to WorkSafe Victoria, being a body having the capacity under the OHS Act to seek compliance with the OHS Act;
1.5 further, or in the alternate, Melbourne Precast contravened s 340(1)(b) of the FW Act on 20 March 2020 by dismissing Mr Hes to prevent him from exercising his workplace right to make complaints and/or inquiries in relation to his employment;
1.5A further, or in the alternate, Melbourne Precast contravened s 340(1)(b) of the FW Act on 20 March 2020 by dismissing Mr Hes to prevent him from exercising his workplace rights as a health and safety representative;
1.5B further, or in the alternate, Melbourne Precast contravened s 340(1)(a) of the FW Act on 20 March 2020 by dismissing Mr Hes because he had exercised a workplace right by taking personal leave;
1.6 further and in addition, Melbourne Precast contravened s 50 of the FW Act on 20 March 2020 by dismissing Mr Hes in circumstances where it failed to comply with the consultation obligations imposed by clause 11 of the Agreement;
1.7 further and in addition, Melbourne Precast contravened s 50 of the FW Act on 20 March 2020 by dismissing Mr Hes in circumstances where it failed to comply with the obligations imposed in relation to redundancy by clause 19 of the Agreement;
1.8 Thomas Pichler (Mr Pichler) was involved in Melbourne Precast’s contraventions of s 340(1)(a) of the FW Act on 20 March 2020, and is taken by s 550 of the FW Act to have contravened s 340(1)(a) of the FW Act on 20 March 2020;
1.9 Mr Pichler was involved in Melbourne Precast’s contraventions of s 340(1)(b) of the FW Act on 20 March 2020, and is taken by s 550 of the FW Act to have contravened s 340(1)(b) of the FW Act on 20 March 2020;
1.10 Mr Pichler was involved in Melbourne Precast’s contravention of s 50 of the FW Act on 20 March 2020 by dismissing Mr Hes in circumstances where it had failed to comply with the consultation obligations imposed by clause 11 of the Agreement, and is taken by s 550 of the FW Act to have contravened s 50 of the FW Act on 20 March 2020;
1.11 Mr Pichler was involved in Melbourne Precast’s contravention of s 50 of the FW Act on 20 March 2020 by dismissing Mr Hes in circumstances where it had failed to comply with the obligations imposed in relation to redundancy by clause 19 of the Agreement, and is taken by s 550 of the FW Act to have contravened s 50 of the FW Act on 20 March 2020.
3 The amended originating application seeks orders that Mr Hes be reinstated, that he be paid compensation, and that the respondents pay penalties in respect of the alleged contraventions.
4 The amended originating application also includes a claim for interlocutory relief (as did the initial originating application dated 3 April 2020). However, when it was indicated that a final hearing of the proceeding could take place within a matter of weeks, the claim for interlocutory relief was not pressed.
5 The hearing conducted on 10 and 11 June 2020 concerned only questions of liability.
6 At the outset of that hearing, I asked Mr Pichler whether he sought leave to appear on behalf of MPC: see Federal Court Rules 2011 (Cth) r 4.01(2). Mr Pichler knew this was an issue that he needed to address, because Murphy J told him as much at a case management hearing on 8 April 2020, before the case was docketed to me.
7 Mr Pichler did seek such leave, but it was refused because of the factual and legal complexity of the case, and Mr Pichler’s failure to provide detailed financial information or any other reason why the company had been unable to obtain legal representation: compare Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [10]ff (French J); Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949 at [3]-[4], [35] (Allsop J, as the Chief Justice then was); All Options Pty Ltd v Flightdeck Geelong Pty Ltd [2019] FCA 588 at [21]-[34] (Steward J).
8 Accordingly, Mr Pichler appeared solely on his own behalf. Mr Boncardo of counsel appeared for the applicants.
9 The grounds of the application are set out in an amended statement of claim dated 10 June 2020 and can be summarised as follows:
(1) Mr Hes was elected as a health and safety representative for the purposes of the Occupational Health and Safety Act 2004 (Vic) (the OHS Act) and an enterprise agreement, namely, the Melbourne Precast Concrete Nominees Pty Ltd and the CFMEU (Victorian Construction and General Division) Precast Panel Enterprise Agreement 2016-2018 (the Agreement).
(2) Mr Hes’s role as a health and safety representative, being a role or responsibility under a workplace law and a workplace instrument (the OHS Act and the Agreement), was a workplace right for the purposes of the Fair Work Act 2009 (Cth) (the FW Act). Mr Hes also had a number of other workplace rights, including to complain to WorkSafe Victoria (the trading name of the Victorian WorkCover Authority) (WorkSafe) in relation to certain matters and to take personal leave.
(3) MPC took adverse action against Mr Hes by dismissing him.
(4) MPC took that adverse action against Mr Hes:
(a) because he had a workplace right comprising his role as health and safety representative;
(b) because he exercised a workplace right by complaining to WorkSafe;
(c) because he exercised a workplace right by taking personal leave; and
(d) to prevent him from exercising the rights in (a) and (b).
(5) MPC thereby contravened ss 340(1)(a) and 340(1)(b) of the FW Act.
(6) In addition, when it dismissed Mr Hes, MPC failed to comply with the consultation provisions in cl 11 of the Agreement, because it did not properly consult with Mr Hes or give proper and genuine consideration to the matters that it was required to consider. As a result, MPC contravened s 50 of the FW Act. MPC also failed to comply with the redundancy provisions in cl 19 of the Agreement, because it failed to allow for voluntary redundancies as a first step and did not consider seniority when selecting employees for retrenchment. MPC contravened s 50 of the FW Act on this additional basis.
(7) Mr Pichler made the decision for MPC to dismiss Mr Hes. He knew that the reasons for Mr Hes’s dismissal included that Mr Hes held, or had exercised, or could exercise, the workplace rights referred to above. He was also aware of the requirements under cll 11 and 19 of the Agreement.
(8) In the circumstances, Mr Pichler, aided, abetted, counselled, procured, was directly knowingly concerned in, or was a party to, MPC’s contraventions of ss 50, 340(1)(a) and 340(1)(b) of the FW Act.
(9) In the circumstances and by operation of s 550 of the FW Act, Mr Pichler is taken to have himself contravened ss 50, 340(1)(a) and 340(1)(b) of the FW Act. (Although Mr Pichler’s accessorial liability was not pressed in respect of the personal leave allegation at (4)(c) above.)
Standing
10 Item 4 in s 539(2) of the FW Act confers standing on an employee organisation covered by an enterprise agreement to apply to the court for orders relating to contraventions of s 50 of the FW Act. The relevant Agreement in this case applies to the CFMMEU. Further, for the purposes of s 540(2), the CFMMEU is able to apply for orders in relation to the alleged contraventions of s 50 as they affect Mr Hes, because it is entitled to represent Mr Hes’s industrial interests. And Mr Hes has standing to apply for orders in relation to the respondents’ alleged contraventions of s 50 under Item 4 of s 539(2) because he is an employee of the first respondent.
11 Further, Item 11 of s 539(2) confers standing on persons affected by alleged contraventions of s 340, and industrial associations, to apply to the court for orders relating to such contraventions. Mr Hes is a person affected by the alleged contraventions of s 340, obviously, because he was dismissed. The CFMMEU also has standing pursuant to s 540(6)(b) because the contravention relates to a person (Mr Hes) who is affected by the contravention and it is entitled to represent his industrial interests.
The facts
12 The applicants relied on affidavits affirmed by Mr Hes and his former colleagues, Messrs Mustafa, Rosenbrock, DeBono and Rust.
13 Mr Pichler relied on his affidavit dated 27 April 2020.
14 Mr Pichler cross-examined Messrs Hes, Mustafa and Rosenbrock, but, other than putting to Mr Mustafa his case in respect of the provenance of a document entitled “Employee skills and attributes evaluation”, dated 20 March 2020, he did not challenge the substance of their relevant evidence.
15 A facsimile of that document, a complete copy of which was produced by MPC on subpoena, and which was central to Mr Pichler’s defence, is annexed to these reasons as Annexure A.
16 Mr Boncardo, who appeared for the applicants, cross-examined Mr Pichler at some length, including about the provenance and authenticity of Annexure A.
17 I will turn now to the substance of the evidence given by each of the witnesses, principally in their affidavits. I have not had regard to clearly inadmissible parts of some of the affidavit material relied on by the applicants, which are speculative or record uncommunicated impressions, and the like.
Mr Hes
18 Mr Hes gave the following evidence in his first affidavit dated 2 April 2020.
19 Mr Hes deposed that he had been employed by Melbourne Precast for nearly eight years, and that during that time there had never been any issues raised with him regarding his performance.
20 He explained that Melbourne Precast has approximately 30-35 employees. Of these employees, 10-12 work in what is called the “outside crew” (who attend construction sites to install precast concrete products manufactured by Melbourne Precast). Between 12 and 14 employees work in the “yard” and make the precast concrete products (the yard employees). Between 4 and 5 employees work in administration, and a similar number are employed as supervisors or managers.
21 In 2016, Mr Hes was elected by the yard employees to act as their health and safety representative (HSR) for the purposes of the OHS Act.
22 Around the start of 2019, Mr Mustafa began work as a Production Manager at the yard. He asked Mr Hes to take on the role of supervisor of the yard employees, which he did. At the same time, Mr Hes resigned from his role as HSR.
23 Towards the end of 2019, Mr Hes and Mr Mustafa agreed that Mr Hes would cease his role as a supervisor.
24 Mr Hes was (again) elected as HSR in February 2020. In the interim, Mr Fogarassy had held the role of HSR for the yard employees.
25 Mr Hes gave evidence that in January 2020, soon before his second election as HSR “… large sections of Victoria were engulfed in bushfire and this caused heavy smoke to drift across Melbourne, including the Carrum Downs area. As such the air quality in the Yard had become, towards the end of January, increasingly poor … to the point that it was not particularly safe to be working out in it”.
26 His evidence continued:
On or around 29 January, the CFMEU sent out a hazard warning to CFMEU HSR’s regarding the air quality across the city. At that time Mr Fogarassy was still the HSR for the Yard. He received the warning and showed it to me, asking me what he should do. I told him that he needed to consult with Yard Employees and Melbourne Precast management to address the issues.
The following day, 30 January 2020, the air conditions had not improved. CFMEU organiser Mr De Bono visited the Yard and I understand raised the issue of the poor air quality with the Melbourne Precast managers and supervisors.
As a result of the discussions that ensued, Melbourne Precast management directed Yard Employees to cease work on health and safety grounds. I found out about this when I was in the lunch room (crib hut) having lunch on that day and the Yard Employees all walked in and sat down. Mr Mustafa came into the room and told us that Mr Pichler had directed employees to go to crib hut and work on Standard Operating Procedures …
27 Mr Hes said that he was in the crib hut for between 15 to 20 minutes eating his lunch. He explained that when he had finished his lunch, he left the crib hut to go and clock back on and then to check a concrete pour for which he was responsible. When he returned to the crib hut about five minutes later, he heard Mr Pichler shout at the employees still in the crib hut words along these lines:
I don’t give a fuck – get back to work or you’re not getting paid. I’m not gunna have the Union disadvantage me. When it hits 35 I’m not paying youse – youse can go home – I’m not paying youse. Otherwise you need to get out there and go back to work.
28 Mr Hes said that Mr Pichler then left the crib hut and Mr Mustafa told everyone to get back to work. Mr Hes asked Mr Mustafa if there were going to be any safety measures put in place to deal with the smoke. Mr Mustafa said that he would provide masks for employees.
29 After that incident, Mr Hes was approached by a number of yard employees asking him to “step up” to the HSR role. He said:
It seemed that the widely held view amongst Yard Employees was that Mr Fogarassy was simply not strong enough as a HSR to stand up to Mr Pichler. Mr Mustafa also approached me after 30 January 2020 and said it would be a good thing if I took a HSR role again.
30 On about 14 February, Mr Rosenbrock, a Melbourne Precast employee and CFMMEU shop steward, approached Mr Hes and told him that Mr Mustafa had agreed to have a toolbox meeting the following Tuesday concerning the election of a new HSR.
31 On 17 February, Mr Rosenbrock told Mr Hes that the meeting would occur the following day and that Mr Fogarassy had agreed to step down and let Mr Hes take the HSR role.
32 On 18 February, the yard employees assembled in the crib hut. Mr Mustafa was also present. Mr Hes gave evidence that:
As the meeting started Mr Pichler came in. It appeared to me that he was very angry. He started yelling at the assembled workers, saying words to the effect of: You can have your meeting in your meal break. You can’t have one now. You need to get back to work. I’m not paying you for this meeting. You need to get back to work.
33 Mr Pichler then left the room and Mr Hes was elected HSR, unopposed. From that date (18 February 2020) Mr Hes thus had conferred on him the powers, functions and rights conferred on HSRs by Part 7, Divisions 5-6 of the OHS Act.
34 Later that day, in his capacity as HSR, Mr Hes contacted WorkSafe and explained what had happened both in relation to the 30 January incident and what he described as “the general failure of Melbourne Precast management to consult with employees about health and safety issues”. He told the person to whom he spoke at WorkSafe “that it was completely unacceptable that Mr Pichler had barged into the crib hut and yelled at everyone in that way”.
35 In another call with WorkSafe later in the day, Mr Hes was told that Worksafe would send him a “bullying pack”. Mr Hes told WorkSafe “that what [he] really wanted was someone to come out to the Yard to deal with the issue and with a range of other concerns [he] had …”
36 Later, Mr Hes told Mr Mustafa that he had contacted WorkSafe and then had a conversation with Mr Mustafa along these lines:
[Mr Hes]: [Mr Pichler’s] actions are unacceptable. He’s threatening workers and doing everything he can to intimidate us. There is no consultation – no anything. I need someone to come out and deal with it because I can’t deal with it through you. I’ve rung WorkSafe and asked them to come out and help me deal with it.
Mr Mustafa: Okay. You need to calm down. We can address the issues one at a time.
37 Later, Mr Mustafa told Mr Hes “that he had consulted with [Mr Pichler] about the issues”.
38 On 20 February 2020, Mr Hes was approached by one of the younger workers, Mr Bailey Griffiths, who raised an issue with him. Mr Griffiths felt that he was receiving unfair treatment from his supervisor, Mr Matthew Hughan. Mr Hes agreed to take up the issue with management.
39 Mr Hes then went to the yard office and spoke with Mr Mustafa, who told him to set up a meeting between Mr Griffiths, Mr Hes and himself. At the meeting, which occurred around 12.30pm that day, Mr Griffiths explained his grievance to Mr Mustafa. Mr Mustafa said that “if what he was saying was true, that wouldn’t be acceptable” and that he would speak with Mr Hughan.
40 Mr Mustafa and Mr Hes met with Mr Hughan not long thereafter and, as Mr Hes said “started to discuss the issue when Mr Pichler walked into the meeting. He listened for about 20 seconds then demanded to know what was going on. I briefly explained the issue and told him that it was a health and safety matter that we were trying to resolve. Mr Pichler then laughed in response”. The following exchange then occurred:
[Mr Pichler]: You need to get out and get back on the floor and start pouring concrete again.
[Mr Hes]: We haven’t finished in here.
[Mr Pichler]: No. You have. (Yelling at [Mr Hes]) Get out and get back on the floor.
41 Mr Hes said that he was stressed and upset about what had happened and went home shortly thereafter. On the way, he again called WorkSafe.
42 On 21 February, Mr Hes received a phone call from Mr Rosenbrock, who told him “that Mr Pichler had sent out a notice to all employees which identified both of [them] as the source of the company’s problems”. The email, a copy of which Mr Rosenbrock forwarded to Mr Hes that day, was headed “We apologise if some of the content below is stressful but it is highly important that all employees have a full understanding of what’s happening at their workplace”. It relevantly read as follows:
Since Feb 2019 till Feb 2020 we have had to make 14 people redundant – NOT because we want to but because we cannot win enough jobs as the NON EBA pre-casters are cheaper, and because Paul R [Rosenbrock], Paul H [Hes] and Union Organiser’s [sic] Nick and Andrew seem to not care about the overall survival of MPC, an EBA Pre-Casters for 30 years and are more concerned about [other] things …
…
Paul R [Rosenbrock], Paul H [Hes] have OPTED to unlawfully hold meetings delaying production recently
Even after I advised Paul he can have a meeting when Management gives the ok to do so but not today
He refused to accept this and stated ‘we will be having a meeting today’
…
The Employees of MPC need to trust its Directors and Management team to delivery [sic] to them a safe, stress free, enjoyable and highly efficient work place. Only we can provide the best case job security.
The CFMEU and or MPCs nominated Shop Steward and OHS Steward cannot do this.
Excessive conflict between MPC and them WILL NOT allow the above vision points to be achieved.
(Emphasis added.)
43 Mr Hes returned to work on 11 March 2020, having taken some “personal leave” as permitted by the Agreement (on medical grounds) and some approved annual leave.
44 On Friday 13 March, the yard employees were directed to attend a toolbox meeting at 1.00pm. At that meeting, Mr Pichler addressed the yard employees, including Mr Hes. Mr Pichler said “that the company would need to make 2 or 3 employees redundant” and that “there would be a call for volunteers but ... the company would not have to accept any volunteers”. Mr Hes said that “[n]o further information was provided, including in writing, to me or, to my knowledge, anyone else, about the proposed redundancies discussed at this meeting”.
45 Under the heading “Dismissal” in his first affidavit, Mr Hes deposed as follows:
On Friday 20 March, I attended work as usual. At approximately 1.30pm when I was on my break I was approached by Mr Rosenbrock who told me that Mr Pichler wanted to see me in the Yard office.
I went to the office with Mr Rosenbrock, where we met Mr Pichler. Mr Pichler said words to the effect of:
I’m sorry, Paul but I have to let you go. You’re one of the poor performers.
Mr Pichler then showed me a list of employees and I saw that there was a score of ‘19’ next to my name
I was taken aback by what was happening and recall being stunned and lost for words.
I recall that the following exchange occurred between Mr Rosenbrock and Mr Pichler regarding the performance appraisal document:
Rosenbrock: That’s wrong – where did you get this from?
Pichler: I don't know – I didn’t do the appraisal.
I did not receive a notice of termination or any other documentation during the meeting.
The whole meeting only lasted a couple of minutes.
I then proceeded to leave the yard as I had been sacked from my job.
When I left the meeting, I spoke with both Mr Hughan and Mr Evans by phone as they had been my immediate supervisors, save for when I was a supervisor myself. I asked them both if they had been involved in any kind of performance appraisals regarding me or employees more generally. They both told me that they were not aware of any such appraisals or that I had been subject to any performance review. I found this strange because ordinarily supervisors would be involved in such assessments. I had, in fact, done these kind of assessments myself in my time as a supervisor. I note Mr Evans was the supervisor who usually monitored me and who I was required to directly report to.
At no time had anyone at Melbourne Precast ever raised any issues about my performance. I was a diligent and hardworking employee. I reject the notion that I was ‘poorly performing’.
I was also by no means the most inexperienced of the Yard Employees. In terms of years of service with Melbourne Precast I estimate that I would be close to the middle. By my estimation there are about 6 Yard Employees who have been at Melbourne Precast for more than 10 years, myself with approximately 7.5 years, one employee with 5-6 years’ experience and 5 to 6 with between 1-2 years experience.
46 In his second affidavit dated 22 May 2020, Mr Hes deposed that, at the meeting where he was dismissed on 20 March, Mr Pichler showed him a skills and attributes evaluation document like the one at Annexure A. However, unlike Annexure A, the document he was shown did not have any handwriting on it.
47 During cross-examination, Mr Pichler challenged Mr Hes’s credibility on the basis that he had in 2019 been “effectively” demoted from his position as a supervisor by Mr Mustafa, a suggestion which Mr Hes (and Mr Mustafa) emphatically rejected.
Mr Rosenbrock
48 Mr Rosenbrock gave the following unchallenged evidence in his first affidavit dated 2 April 2020.
49 Mr Rosenbrock is employed by Melbourne Precast as a steel fixer and labourer. He has been employed there for nearly 17 years. He is a member of the CFMMEU and is the elected shop steward for the CFMMEU in the yard.
50 Mr Rosenbrock deposed that on 13 March, Mr Pichler held a meeting of yard employees at which he said there were going to be some redundancies. Mr Rosenbrock said that he “was immediately concerned because [he] had a feeling that [Mr Pichler] was going to use this process to get rid of Paul Hes”. Mr Rosenbrock also said that he “knew that Mr Pichler considered [Mr Hes] to be a nuisance” because Mr Pichler had earlier showed him an email that he had received from Melbourne Precast’s business advisors, Workplace Wizards, “from which it was clear that [Mr Pichler] had complained about Mr Hes ‘running off to WorkSafe and raising OH&S issues’ in his capacity as HSR”. That email read as follows:
Hi Tom [Pichler]
As we discussed, this email addresses [Melbourne Precast’s] issues with the safety rep.
Safety rep issues
Regarding the safety rep who is ‘running off’ to WorkSafe and raising OH&S issues, we recommend you use the following process to address these matters:
• Step 1 – Require the employee to raise the issue with you in writing (i.e. via email). This email should detail the nature of the issue, the alleged risks and any suggestions for preventing or reducing the risk;
• Step 2 – You review the issue and determine whether corrective or preventative action is necessary (this will likely involve further investigation of the alleged issue);
• Step 3 – Upon conclusion of your review, communicate [Melbourne Precast’s] decision with the Safety Rep (i.e. whether there is any corrective action necessary, what this might involve or whether work will continue ‘business as usual’ without change);
• Step 4 – Document any action taken as a result of the OH&S issue raised; and
• Step 5 – Periodically review corrective/preventative measures taken to determine whether these are working/remain appropriate.
I trust the above are useful. Give me a call to discuss, should you wish.
Cheers
NATHANIEL GANESON
Senior Workplace Relations Consultant
WORKPLACE WIZARDS
(Emphasis in original.)
51 A week later, on 20 March, Mr Rosenbrock attended the meeting with Mr Pichler and Mr Hes at which Mr Hes’s employment was terminated. Mr Rosenbrock deposed that “Mr Pichler said that the termination was a redundancy and that Paul had been chosen because he was one of the worst performers in the workplace. I didn’t accept that to be true and I said as much to Mr Pichler”.
52 Mr Rosenbrock also said that he had expressed his disagreement to Mr Pichler at that meeting because:
… in fact Paul is one of the best performers in the Workplace. He is respected by the Yard Employees for his straightforward, no nonsense attitude and there can be no question that he knows the requirements of his role and is very good at fulfilling them. Melbourne Precast has obviously recognised this in the past when he was promoted to the position of supervisor. Even though he was now no longer a supervisor he was still very much one of the leading hands and would often be the most senior employee in the Yard. It simply doesn’t make sense that he could be ranked as one of the company’s worst employees.
53 In his second affidavit dated 22 May 2020, Mr Rosenbrock gave further evidence regarding the dismissal meeting. He deposed that Mr Pichler showed him a document that was “very similar” to Annexure A, but which did not have any handwriting on it.
Mr Mustafa
54 Mr Mustafa was employed by Melbourne Precast until April this year as its Production Manager.
55 In his first affidavit dated 22 May 2020, Mr Mustafa explained that he had originally produced a version of the “employee skills and attributes evaluation document” in early 2019. He had done so in order to understand where Melbourne Precast’s “skills gaps” were, and to determine who its valuable employees were. He had not produced it for the purposes of selecting employees for redundancy. Mr Mustafa explained in more detail as follows:
When I commenced working as the Production Manager at MPC, a rudimentary skills matrix was in place. I consulted, between January 2019 and March 2019, with three supervisors about this document. This included Mr Hes, who was a supervisor for MPC’s concrete team, Glen Evans who was a supervisor for the boxing team and Matt Hughan who was a supervisor for the steel fixing team. I recall that we reworked out the criteria together and devised the last criterion which referred to ‘development potential’ to take into account that we had a lot of young people who would not have scored particularly well on the other factors but we wanted to account for the fact they might have had potential.
After the document was completed, Mr Hes, Mr Evans, Mr Hughan and I sat down and evaluated MPC’s employees. This occurred in about March 2019. Mr Pichler was not part of this and had, in effect, nothing to do with the day to day running of the business at this time. I note that none of us as supervisors were subject to the assessment.
56 Unlike that initial version of the employee skills and evaluation document, the version at Annexure A contains an assessment of Mr Hes. It also contains a handwritten note which reads “Accepted by Ziya Mustafa” and purports to bear Mr Mustafa’s signature.
57 Mr Mustafa, however, gave evidence in his affidavit and in cross-examination that he did not write “Accepted by Ziya Mustafa” on the document, nor did he sign it. His evidence was that the first time he saw this version of the document, purportedly signed by himself, and also by Mr Hughan and by Mr Pichler, was when he saw the redacted copy of it annexed to Mr Pichler’s affidavit. He denied Mr Pichler’s evidence, which I deal with below, that he prepared, or had any role in preparing or providing input into, the information in the document about Mr Hes.
58 Mr Mustafa went on to say in his affidavit that if he had carried out a skills assessment using the skills matrix provided in the document, he would have concluded that Mr Hes was one of the company’s top performers. He explained that he would have given Mr Hes a minimum score of 24, not 19, for these reasons:
In relation to the skills matrix, I would have awarded Mr Hes a 5 for ‘willingness to undertake new skills’. He always put his hand up to do things and learn new skills. He was a fire warden, an HSR and he would always volunteer to perform work in confined spaces.
In respect to attendance and timekeeping, I would have rated him between 4-5. He had very few days off and if there was an RDO and work was required to be performed, he would come in and help as required. He was always punctual and always applied appropriately for annual leave in advance.
In relation to whether he was a team player, I would have rated him a 3-4. He tried to do too much work himself and did not delegate sufficiently.
In respect to general performance, I would have rated him 4-5. He was a very good performer and a hard worker.
In relation to willingness to impart knowledge, I would have rated him a 4. He trained me on a number of things and he trained others as well. As to developmental potential, I would have scored him 4-5. Overall, the minimum score I would have given him would have been 24.
59 Mr Mustafa also deposed that he told Mr Pichler about Mr Hes’s WorkSafe complaints:
I note that Mr Pichler denies in the Defence at paragraph 17 that I told him or ‘company management’ about Mr Hes saying he had made a report to WorkSafe Victoria about Mr Pichler’s behaviour, the lack of consultation about work health and safety issues and other safety matters at MPC. This is incorrect. I did tell Mr Pichler that Mr Hes had told me that he had made a report to WorkSafe Victoria. I also told him that Mr Hes was going to ask them to come to the yard. I do not recall specifically what Mr Pichler said in response to this …
60 Mr Mustafa was cross-examined by Mr Pichler, but not in relation to Mr Pichler’s claim that Mr Mustafa had prepared Annexure A. The only exchanges that touched on the topic of Annexure A were as follows:
MR PICHLER: Mr Mustafa, wasn’t it you that introduced the employee skills and attributes evaluations to me?---Yes, it was.
Wasn’t it you that showed me all the employees’ scores, including Mr Hes, that you had scored him at 19?---No.
So where did the – where do you say the score and the overall scores that the court now has an original copy of came from because, as - - -?---Mr Pichler, I had no part in evaluating [Mr Hes’s] performance. Paul Hes was not evaluated at all for his skills and attributes. The first time I saw his skills and attributes evaluated was on a handwritten paper from yourself, asking me to update electronically, print out and give it back to you and I carried out that directive.
Mr Mustafa - - -
HIS HONOUR: And when – I need to ask you a question now, Mr Pichler. When was that, Ms Mustafa?---Approximately March 2020. Somewhere March 2020.
…
MR PICHLER: Okay.
Mr Mustafa, you do agree that the employee skills and attributes evaluation is something that you brought to Melbourne Precast?---Yes, I agree.
And is it your statement to suggest that you scored everyone, excluding Mr Hes, on the 20th of the 3rd, employee skills and attributes evaluation which you have in front of you?---Yes. Yes. Yes. That – that is correct. I did not score Mr Hes, and it wasn’t myself. It was a panel of people that did all the scoring.
HIS HONOUR: All the scoring on this sheet?---Yes.
MR PICHLER: Sorry, your Honour. I’m not sure there was an answer there.
HIS HONOUR: I think the witness said it was a panel of people who did the scoring.
Is that right, Mr Mustafa?---That’s right. That’s right. It wasn’t myself scoring people. That is not a correct statement.
MR PICHLER: And Mr Hughan was part of that score and – and are you saying he - - -?---That’s - - -
Sorry. Mr Hughan was part of that panel?---Mr Hughan was – yes, one of the – one of the people on that panel. There were four people. Mr Hughan was one of those people and I was another person.
And the other person, do you say, was Mr Glen Evans, who is no longer with the company?---So – that’s right.
And just for the record, Glen Evans left the company on his own terms and moved interstate?---That’s right.
So, Mr Mustafa, you’re saying that - - -
HIS HONOUR: Well, who is the fourth person?---Yes. It was Mr Paul Hes.
MR PICHLER: Thank you, your Honour.
HIS HONOUR: So Mr Hes was on the evaluation group?---That’s right.
MR PICHLER: Thank you, your Honour.
So this panel excluded themselves effectively from the scoring. Is that what you’re saying, Mr Mustafa?---That’s right. That’s right. We – we evaluated all of the shop floor personnel, not the supervisors. At that time - - -
Thank you, Mr - - -?---At that time Mr Paul Hes was a supervisor.
61 During the course of Mr Pichler’s cross-examination of Mr Mustafa, there was a dialogue between me, Mr Pichler, counsel for the applicants and counsel’s instructing solicitor about whether the original of Annexure A that had been produced by MPC on subpoena could or should be before the court. The need for such a dialogue arose because the hearing took place remotely and counsel was not at the same location as his instructor. On that day of the hearing, Mr Pichler, at his insistence, appeared, with leave, by telephone. Each of the other participants appeared by video link. During the course of that dialogue, Mr Pichler made the following statements, which include an admission that he added Mr Rosenbrock’s name to the document at Annexure A and an assertion that it had been created and signed by Mr Mustafa:
MR PICHLER: Your Honour, the applicants specifically requested the original [in a subpoena]. And the original – my evidence in cross-examination is all about the original document having, in fact, been created and been signed by Mr Mustafa. And that signature is his signature that he signed off on in front of me, as did Matt Hughan. And just to clarify, Mr Rosenbrock, that’s my handwriting. I never asked him to sign it. I just noted that down there as he was [attending] during this particular meeting which preceded the redundancy meeting. So my evidence is that that’s a bona fide employee skills and attributes evaluation.
…
Your Honour, I don’t have the subpoena list of documents, but the subpoena – in front of me. Sorry. But the subpoena simply requested the original, not just a copy of the original. It requested the original. And the original has the original handwritten ink on it and individual signatures, which is important to establish, however the court may wish to establish, that that is not a fraudulent signature of two other people, Matthew [Hughan] and Mr Mustafa, and it’s in fact their signatures.
Now, if the applicant and the court wish to proceed on the basis of the copy of the original, I’m at the court’s discretion. But it’s being claimed by the applicant that I have created this in a manner to justify some ulterior motive, which is, from the company’s point of view – sorry – complete nonsense. It’s a bona fide process that Mr Mustafa introduced himself. It’s a bona fide sign-off by him on that particular evaluation with the understanding of redundancies that were ongoing since April 2019. There’s just simply no margin for error or hidden agendas.
In my submission, your Honour, the employee skills and attributes evaluation is exactly what it appears to be and was created by Mr Mustafa: as he said previously in cross-examination, that he went to his laptop and, according to him, entered in a figure for Mr Hes that he did not enter previously. Even if that was the case, your Honour, he still discussed a score for Mr Hes and didn’t blindly just go about entering it and then signed off on it.
62 Ultimately, Mr Pichler said that he was content to proceed with his cross-examination without having access to the original document. However, he did not ask Mr Mustafa any further questions about Annexure A, nor did he put the proposition to Mr Mustafa that it was his signature on the bottom of it, despite knowing that Mr Mustafa insisted that it was not his signature. He did ask whether he could require Mr Mustafa to submit a specimen of his signature for comparison against Annexure A. But, as I explained to Mr Pichler, and quite apart from anything else, such a specimen would not assist the court in the absence of expert evidence about its significance.
63 As with Mr Hes, Mr Pichler made a general challenge to Mr Mustafa’s credibility. This challenge was made on the basis that Mr Mustafa had been demoted during his time at MPC, did not have precast concrete manufacturing experience, and was a disgruntled ex-employee. Mr Mustafa rejected these assertions.
64 It is not necessary in these reasons to set out the uncontested evidence in the affidavits of Mr Christopher Rust (who is employed at Melbourne Precast) and Mr DeBono (who is the CFMMEU organiser with responsibility for CFMMEU members employed by Melbourne Precast).
Mr Pichler’s evidence in chief
65 Mr Pichler relied on a single affidavit, which he prepared without legal assistance.
Financial predicament of Melbourne Precast
66 Much of the affidavit comprises an explanation of the financial predicament in which Melbourne Precast finds itself nowadays, principally, it seems, because of the impact of the COVID-19 pandemic and because of competition from other participants in the precast concrete industry who, Mr Pichler says, pay lower wages because they are not parties to enterprise agreements with the CFMMEU. Mr Pichler also deposed to the making of redundancies in recent times, explaining: “[r]egrettably, as the company is no longer as competitive in the industry and is losing work to the more competitively priced pre-cast manufacturers, between 1 April 2019 until 1 April 2020 MPC has had to make 24 employees’ positions redundant. Specifically, seventeen of these redundancies have occurred since October 2019 with four as recent as 17 April 2020”.
67 Mr Pichler attached to his affidavit a list of the names of employees who he said had been made redundant since April 2019, although he was forced to concede in cross-examination that a number of those employees had ceased employment for reasons other than redundancy (a number having, for example, left of their own accord).
Dismissal of Mr Hes
68 Mr Pichler explained MPC’s rationale for terminating Mr Hes’s employment in his affidavit, deposing that MPC makes redundancies “in accordance with due process and based on employee skills and attributes evaluations by MPC management”. He said that this was an “objective” process.
69 Referring to a redacted version of the skills and attributes evaluation document, Mr Pichler deposed that, out of a maximum possible score of 30, Mr Hes had received a score of only 19, “which was the second lowest”. He emphasised MPC’s reliance on Mr Hes’s score of 19, deposing that “[a]part from his score as per the Employee Skills Evaluation Sheet, there was no other reason why Mr Hes was selected for redundancy” and that “[a]ny claim made to the contrary by the CFMEU and/or Mr Hes is simply not true” (emphasis added).
70 Later in his affidavit, Mr Pichler deposed:
… Mr Hes’ redundancy was a result of the Employee Skills Evaluation score he received and had nothing to do with his position as HSR or him raising any safety concerns with myself. Despite this, the manner in which Mr Hes was raising his safety concerns were not in accordance with the [Agreement] nor our ordinary protocols. However, ultimately, this had no bearing on the decision to make Mr Hes’ position redundant.
71 He also affirmed that “[a]nother employee, Mr Rollason, scored the lowest score of 17. As a result, Mr Rollason’s position was made redundant at the same time as Mr Hes”.
72 The difficulty with that evidence is that it is clear from Annexure A that Mr Hes was not in fact the worker with the second lowest score – that was Mr Benjamin Evans who, with 18 points, scored more than Mr Rollason but less than Mr Hes. Mr Evans is still employed by MPC. I will return to that matter later.
73 Mr Pichler also queried Mr Hes’s appointment as HSR on 18 February 2020, which he described as a “random event” that “occurred without prior discussions with any MPC management” and in circumstances where, he claimed, “most employees … were not aware of the change”. He also asserted that he and the MPC management team believe Mr Hes’s appointment “was not conducted in accordance with the proper process, as per the [Agreement]”.
Cross-examination of Mr Pichler
74 It is regrettably necessary, because it is important in assessing his credibility, to have regard to some lengthy passages from the transcript of Mr Pichler’s cross-examination. I now turn to that evidence.
Mr Hes’s appointment as HSR
75 Counsel asked Mr Pichler about the 18 February 2020 meeting at which Mr Hes was elected HSR (about which Mr Hes gave evidence – see [32] above). The exchanges between counsel and Mr Pichler on this topic included these:
[MR BONCARDO:] Well, maybe I will do it this way, there was a gathering of employees including Mr Hes, Mr Rosenbrock and the manager Mr Mustafa; you recall that, and a number of other employees?---There is many meetings. You – can you give me what the – what the topic of this meeting might have been?
The meeting to elect a new health and safety representative?---Yes. No. I – I did not attend or intervene on a meeting that involved the process or any process of electing a new HSR.
Can I suggest to you, sir, that you did turn up and that you told those present that they could have their meeting in their meal breaks. That happened, didn’t it?---The – I advised employees at some point – I cannot recall if it was on the 18th or 19th or a week or two weeks but I have advised employees in a meeting in the lunchroom, which I think the employees refer to as the crib room or in the documents, that meetings – meetings need to be conducted during non-paid hours as per the EA.
Sir, you know exactly what meeting I’m talking about. It’s the meeting that Mr Hes was elected a health and safety representative on 18 February?---On 18 February, sir, I was not aware at all that – and nor was I aware that any days preceding the 18th that there was any new HSR person being put up or nominated.
…
Mr Pichler, what I want to suggest is that you did interpose yourself during the course of the meeting and you said, ‘You can’t’ - - -?---Well, that’s - - -
- - -‘have a meeting now’ - - -?---Well, that’s – that’s incorrect and … refer to the meeting you’re talking about of some sort of election process for a new HSR I did not and never interrupted a meeting that – where the – the basis of that meeting was any election of any HSR.
Well, what I want to suggest to you, sir, is that you did and you said to those present that, ‘You can’t’ - - -?---Well, I just – I just - - -
- - - ‘have a meeting now’ - - -?---I just told you I did not - - -
Just wait for the question, Mr Pichler. You told those present that, ‘You can’t have a meeting now. You need to go back to work’, you weren’t paying – and you weren’t going to pay them for the meeting?---I made reference to meetings taking place during non-break times at some point in or around February or early March to advise employees of the appropriate times for meetings in accordance with the EA. I did not ever – and I refute the suggestion – the continued suggestion that I stormed or interrupted a meeting during the election of a HSR. As I have – as I have demonstrated in my material I was never made aware that a new HSR was being put up or elected, even nominated.
(Minor formatting and spelling errors in the transcript have been corrected in this extract and in those that follow.)
20 February 2020 meeting
76 When asked about the 20 February meeting concerning Mr Griffiths, Mr Pichler contested Mr Hes’s evidence that he had behaved aggressively. Rather, he said, he had only entered the room briefly, on two occasions. The first time he “opened the door briefly, politely, casually … in [his] sarcastic general vibe” and asked “What’s up?” The second time, he “asked for the meeting to be adjourned” with a “friendly and jovial” demeanour. He said that no one present other than Mr Hes appeared to take exception to his suggestion that the meeting be adjourned.
The Workplace Wizards email
77 Counsel also asked Mr Pichler about the email he received from Mr Nathaniel Ganeson of Workplace Wizards (see [50] above), as follows:
[MR BONCARDO:] Now, you would refer to a HSR as safety rep, wouldn’t you, sir?---Yes.
All right. Now, Workplace Wizards, sir, they’re a – what, an – a consultancy firm that Melbourne Precast uses from time to time?---Yes.
And you engage them yourself, don’t you?---The company has – various people in the company have referred to them from time to time. Yes.
Including you?---Correct.
And you know Nathaniel Ganeson, don’t you?---Yes. He’s an employee for them – for them.
Yes. And you’ve engaged him previously to give you advice about matters, haven’t you?---Yes.
All right. And you spoke to Mr Ganeson on 18 February, didn’t you?---I can’t recall without looking at emails or documentation.
Well, have you got Mr Hes’s affidavit there, sir? Mr Hes’s first affidavit?---Give me a moment.
I withdraw that, sir. I apologise. Mr Rosenbrock’s first affidavit?---Give me a moment. Yes.
…
All right. Now, I’m going to get you to turn to a page in a moment but I just want to put some propositions to you first. You would agree with me that Mr Mustafa told you on 18 February that Mr Hes had contacted WorkSafe and asked them to come to the yard?---I can’t recall if it was the 18th of the 2nd but I’m aware that – I’m aware that Mr Hes made contact with WorkSafe. Yes.
And he complained about – or you’re aware that Mr Hes complained about health and safety issues at the yard and your behaviour?---Retrospectively, yes, I was made aware of his complaints. Yes.
What I want to suggest to you, sir, is that you were made aware of his complaints on 18 February 2020?---Yes. I can’t - - -
You agree? You agree with that or disagree?---I can’t confirm either way off the top of my head, sorry. I – I understand the events generally that you’re referring to. The specific – specific date of each particular incidence you’re – you’re breaking down, I – I can’t – I – I can only give you my best recollection, sorry, sir.
Now, what I want to suggest to you, sir, is that Mr Mustafa made you aware that Mr Hes had made complaints to WorkSafe and asked them to come to the yard and you were concerned about that?---No. I wasn’t – I – I wouldn’t say I was overly concerned. I – I - - -
You weren’t worried at all?---No. No, your Honour. No. No. No – sorry, no, sir, not – not worried in the extent – in the sense that I was more worried than – than any other – any – any other part of running the business.
Sure. Sir - - -?---…
- - - certainly not worried enough to go off and get some advice from your workplace consultants; correct?---We would get advice from time to time - - -
Well, I’m asking about this occasion?---Yes. Well, we’ve established that I’ve – if that was on the 18th – again, I can’t recall but if there’s information dated on – on the 18th then that’s the advice that came back on that day I – I guess.
Well, don’t try and guess, sir. Just focus on my questions?---Well, I guess to my best – best recollections.
What I want to suggest to you that occurred, sir, was that Mr Mustafa came and disclosed to you that Mr Hes had made complaints to WorkSafe and you contacted Mr Ganeson of Workplace Wizards about issues you were having with a safety rep who was running off to WorkSafe?---Well, I recall getting advice with Mr Ganeson in regards to proper process in regards to safety reps generally be it the one that preceded – allegedly preceded Mr Hes’s election. So, yes, generally, during that period of time I made efforts to update myself, having been out of the industry and – for a long period of time, to understand appropriate and due process in relation to an alleged safety issue and the opportunity for management to – to appropriately deal with any safety issue. Yes.
All right. So just so I understand your evidence, sir, are you telling the court – and I – and tell me if I’ve got this wrong – that you approached Mr Ganeson about – for general advice about health and safety issues, is that your – what you’re saying?---Not just health and safety issues. No.
I see. And that you approached Mr Ganeson about health and safety representatives generally, is that your advice – your evidence?---There’s – some of the conversations were – were regards – as I just mentioned – to update myself on the appropriate processes between management and employees. Yes.
All right. Now, you’ve got Mr Rosenbrock’s affidavit there, sir?---Yes.
Turn to the final page of that affidavit for me, please?---Yes.
You see that that is an email from Nathaniel Ganeson - - -?---Yes.
- - - dated 18 February 2020 at 3.23 pm?---Correct.
Sent to you?---Yes.
And the subject matter is:
Precast Advice OHS Issues.
?---Yes.
Now, just have a look, sir. You will see that Mr Ganeson addresses you, the salutation, ‘Hi Tom’, and says:
As discussed, this email addresses MPCNs issues with the safety rep.
?---Yes.
You see that?---Yes.
And you agree with me that ‘the safety rep’ was Mr Hes?---No.
You don’t agree with that proposition?---No. No. Because - - -
Well, what issues were you having with Mr Fogarassy?---Well, it – I’m not saying there was issues. There Mr – the - - -
Well, no, sir, just answer my question?---What was the question again?
What issues were you having with Mr Fogarassy?---None.
So you would agree with me - - -?---The - - -
- - - that the only issues - - -?---The issue – the issue that I was making myself aware of is proper process.
All right. Now, have a look at – there’s a heading Safety Rep Issues?---Same page?
Same page. You see that subheading in Mr Ganeson’s email?---Yes. Yes.
And again:
Regarding the safety rep who is running off to WorkSafe and raising OH&S issues.
?---Yes.
Mr Fogarassy wasn’t running off to WorkSafe and raising OH&S issues, was he?---Well, sir, that’s – that’s Mr Ganeson’s wording to me. It’s not my wording.
Mr Fogarassy was someone you had – you told me you had no issues with. That was your evidence?---The – the issues that I provided were that I have no evidence with him as an employee.
You have no evidence with him as an employee?---So - - -
What on earth are you talking about, Mr Pichler?---Yes. No – no issues with him as an employee and – and being a safety rep. The discussions that I have had with Mr Ganeson is in relation to proper process, whether it be Mr Fogarassy or Mr Hes.
And, sir, it’s the case, isn’t it, that the safety rep who was running off to WorkSafe and raising OHS issues was Mr Hes?---Sorry, sir, they – they – they are not my words. They are Mr Ganeson’s words.
I will ask you the question again?---And, no, the answer is not in relation to Mr Hes because on the 18th I believe that is the day that Mr Hes claims that he was elected as the safety steward and, as I’ve advised, I had no knowledge – a prior knowledge or no knowledge on that day that there was any election proceeding to appoint a new safety steward.
Sir, the reason that you contacted Mr Ganeson was because Mr Mustafa told you that Mr Hes had run off to WorkSafe and raised OH&S issues?---No. That’s – that’s not the reason I – I – no. No. That’s not the reason why I contacted Mr Ganeson.
Right. Was it one of the reasons you contacted Mr Ganeson?---No. I contacted – again – Mr Ganeson in regards to updating myself on due process given the environment of the two weeks around this period that involved more discussions and – of safety than – than I had experienced for a long time.
In fairness to you, Mr Pichler, I need to put this to you, that is just nonsense, isn’t it?---No. I – I – I don’t appreciate the comment, sir.
You agree or disagree with what I’ve just put to you?---No. I completely disagree, sir.
The 21 February 2020 notice
78 Counsel next turned to Mr Pichler’s 21 February notice to all employees, extracts of which appear at [42] above:
All right. Now, I think you told us yesterday, sir, that you wrote this document?---Yes. It was a – it was a notice to employees that myself and management and – and Derek discussed prior to it being issued. Yes.
All right. And I think, sir, it’s the case that you wrote this on 21 February; is that right?---It’s not dated.
Would you – you would agree with me that it would have been about 21 February; correct?---Can you – should – should I have a quick read to see if it makes reference to date and time?
Well, I’m – no. But what I want to suggest to you, sir, is that it was at about 21 February?---Well, I will – I will accept that for the moment, sir.
All right. Now, turn to page 40 for me, sir?---Yes.
Now, if you look down, sir, to the third – or the third paragraph there where there’s reference to making 14 people redundant. You see that?---Yes.
And then it says this:
And it’s not because we want to but because we cannot win enough jobs as the non-EBA precasters are cheaper and because Paul R, Paul H and union organisers Nick and Andrew seem to not care about the overall survival of MPC an EBA precaster for 30 years and are more concerned about the following things.
You see that?---Yes.
Paul R is Paul Rosenbrock, isn’t it, sir?---Correct.
He was the shop steward at the time; correct?---Correct.
Now, Paul H is Mr Hes; correct?---Yes.
And he was, at the time you wrote this, the HSR; correct?---Subsequent – well, on the presumption that it – it – this – this – this memo is, as you say, 25th – 21 February then I would have been aware at that point in time of Mr Hes’s alleged appointment as a new HSR. Yes.
And you’re saying there that Mr Hes, amongst other people, ‘seem not to care about the overall survival of Melbourne Precast’?---Yes. That was the feeling of the – of the moment.
And that’s because he had been running off to WorkSafe reporting OHS issues; correct?---No.
Where in your affidavit do you say anything about Mr Hes doing anything untoward or anything that evidenced a lack of care about the survival of Melbourne Precast?---In my affidavit?
Yes. Nowhere?---Without rereading it, yes, no, no, I - - -
Nowhere?---Okay.
And it’s the case, isn’t it, that what you were referring to here in respect to Mr Hes was his running off to WorkSafe and raising OH&S issues?---No. No. Context – the context of this memo and those references in – that – that paragraph starts:
Since February 2019 till February 2020.
So the context of that paragraph is – is much broader than one or two days, sir.
Well, what was Mr Hes doing between February 2019 and February 2020 that caused you to assert that he didn’t care about the overall survival of Melbourne Precast?---State that again.
What are you asserting that Mr Hes was up to between this broader timeframe that you’ve just alerted me to, that is February 2019 to February 2020, that caused you to put in writing to your workforce that Mr Hes did not seem to care about the overall survival of Melbourne Precast?---I guess it was just an overall view at that time, having stepped back into running the factory, that out of the group of employees that were there that Mr Rosenbrock and Mr Hes seemed, in relative terms to the rest of the group – yes – not that – not that concerned about the company’s ongoing survival. Yes.
Well, I want to suggest to you again, sir, you singled Mr Hes out because he was the HSR running off to WorkSafe raising issues?---No. I dispute that, sir.
Right. So this was just the general vibe was it, sir, that Mr Hes wasn’t that interested in the overall survival of Melbourne Precast that caused you to write this; is that right?---It caused me to write that paragraph and – and – as – in consultation with other management and my co-director and bring to the attention of employees three pages worth of content.
Let’s turn to the third page. Page 41, sir?---Yes.
And I want you to – I want to take your attention, sir, to the third last substantive paragraph which commences:
The employees of MPC.
Do you see that?---Yes.
It says:
The employees of MPC need to trust its directors and management team to delivery –
which should, I think, read ‘deliver’ –
to them a safe, stress-free, enjoyable and highly efficient workplace. Only we can provide the best case job security. The CFMEU and/or MPCs nominated shop steward and OHS steward cannot do this. Excessive conflict between MPC and them will not allow the above vision points to be achieved.
?---Yes.
The OHS steward was Mr Hes; correct?---Well, again, if – if this memo is within a – a couple of days of the so-called 18 February election of Mr – Mr Hes then – then I – then I would agree. But if it was not of that time then it’s just an overall - - -
Well, you’ve – well, sir, you’ve referred to Mr Hes on page 40 which I’ve just taken you to with Mr Rosenbrock and union organisers Nick and Andrew?---Yes.
And you’re referring to him as the OHS shop steward on this page as well, aren’t you?---No. It’s a – it’s a – a more generalised view that – that – in reference to improper processes, improper consultation between employees be – be them the previous HSR or a new HSR or – or the shop steward.
Well, that’s – sir, just in respect to the OHS steward - - -?--- … yes.
I’m sorry, Mr Pichler, what did you say?---I was trying to finish, sir, that – to say that the overall content of this refers to generally trying to improve efficiencies, improve consultation and you – as you’ve noted, sir, that the – the first part – the first part of the – of the memo we – if I could read it out, the – the – the third heading says:
We apologise if some of the content below is stressful –
and that during this period of time we’re dealing with significant trading losses, sir, and we - - -
Well, what did the OHS steward have to do with any of that, sir?---Nothing. This is consultation between the company and the employees as – as defined in the EA that we need to do and that’s what we are doing in the context of that overall three pages and – and you will – if you wish to note other paragraphs of that overall memo, it goes to encourage and foster a greater sense of job security, a great … consultation and to bring about a change going forward in order for the company to be able to survive in the current climate, sir.
The only reason, sir, that Mr Hes is mentioned in this document is because you took issue with him complaining to WorkSafe and him being a – if I can put it this way – a vigorous health and safety representative; correct?---No. I – I did not see Mr Hes as vigorous at all in any manner, sir. No. No. The - - -
You – so do you agree with the proposition then that - - -?---There – there’s no – absolutely no - - -
- - - you included Mr Hes in this letter because of his complaints to WorkSafe which weren’t in the company’s interests?---Mr Hes and Mr Rosenbrock were, I guess, highlighted in the context of this memo in that they seemingly were not following the appropriate processes in accordance with the Enterprise Agreement in that they were seeking to have meetings during paid hours of work which is not permissible under the EA and – and – and this goes to – to my taking advice with Mr Ganeson in relation to proper processes and what – in order – in order to, since October 2009, bring myself up to speed with the EA and how we all should act in accordance with that EA, be that myself or its employees, whoever they are, and it was not – it is an overall sense of discussing and formalising what the – the – the appropriate processes to – to make complaints and meetings whether they’re about industrial relations through Mr Rosenbrock or whether they’re safety through Mr Fogarassy or whoever – whoever the HSR rep has been in 30 years of business, sir.
Well, that’s just rubbish, isn’t it, Mr Pichler?---You don’t expect me to answer that, do you? I – I – I - - -
Well, that’s just nonsense. You’ve just made that up haven’t you?---Sir, it is not nonsense - - -
All right. We will move on …
Annexure A
79 Counsel later turned to the circumstances in which Annexure A came into existence, as follows:
All right. Well, you’ve got a copy with you there. Can you hold it up for me? Excellent. All right. I just want you to look at that, sir, for a moment and just have a look at the names of the employees and their commencement dates?---Yes.
Now, you would agree with me that there are a number of employees with significantly less service than Mr Hes; correct – or I will reframe the question. There are a number of employees with less service than Mr Hes?---Yes. Less years of employment.
…
Now, your evidence as I understand it, sir, is that the only thing you took into account in determining to make Mr Hes redundant was his score on this document, is that your – that’s your case, isn’t it, sir?---No. It’s – it’s not my only – it’s not – it’s not the only assessment. No.
And you would agree with me, wouldn’t you, that you didn’t take into account Mr Hes’s level of service or his seniority as compared to these other employees?---No. I absolutely took seniority considerations in – in accordance with the EA.
And that’s in your affidavit where, sir?---I can’t answer you that one. I don’t think - - -
Yes?---It may well not be but I’ve - - -
It’s not in your affidavit because you did not take Mr Hes’s seniority into account at all; correct?---No. No. That’s not correct. Just because it’s not in my affidavit does not mean I didn’t take it into consideration.
Yes. If you took it into consideration, it would have been in your affidavit, wouldn’t it, Mr Pichler?---No, I did take it into consideration, and clearly I have not put it into my affidavit.
…
All right. Now, paragraph 36 of your affidavit, sir, says this - - -?---Give me a minute.
Well, just – you’re welcome to look at it, sir. I was going to read it to you. So you’re welcome to look at it?---Yes.
‘In his evaluation, Mr Hes scored 19 points, which was the second lowest’?---Yes, that’s - - -
You see that?---That’s a – I probably should have taken the opportunity to correct that earlier today. That’s one correction. It should – should have stated ‘the third lowest’.
All right. Well, I – you selected Mr Hes because, according to you, he was in the bottom two?---Yes, and as we’ve just – I’ve just explained, that’s a typo and should be the bottom three.
The bottom three. All right?---Three.
Well, let’s go back to what is in your - - -?---Can I – I just finish that statement? That he’s in the bottom three according to Mr Mustafa’s evaluation spreadsheet, not mine.
All right. Mr Pichler, you just focus on my questions. Can we go back to the subpoenaed documents and what is [Annexure A], that is, the employee skills and attributes evaluation?---Yes. Yes.
Now, this was a document you say you based your decision on to make Mr Hes redundant?---This is a document that I relied on.
All right. And you say you selected Mr Hes because he was the person who obtained the second lowest score out of 30?---Well, if we could – if we could stand corrected and – and – and look at the fact that he was the third lowest, because that’s - - -
Because Mr Evans was the second lowest, wasn’t he, sir?---According to Mr Mustafa’s evaluation, yes.
I’m not – Mr Evans was the second lowest. Correct?---Yes, according to Mr Mustafa’s evaluation, sir.
Is there some other evaluation that we don’t know about that you’re alluding to?---Yes, there’s subsequent evaluations since that date. Yes.
As at 20 March 2020, were there other evaluations you relied upon? Is that what you’re telling us?---There were other considerations, yes.
There were other considerations?---And Mr - - -
Where are those considerations set out in your affidavit?---Those we just – just discussed. Seniority was a consideration.
Where are those considerations set out in your affidavit, Mr Pichler?---I just described that we didn’t do that.
You didn’t do that because you said – and you say, don’t you – that you selected Mr Hes because he was in the bottom two?---Correct, in two – the bottom three, yes.
All right. Yet Mr Evans, who’s actually in the bottom two, is still employed?---As I’m trying to explain, sir, that the – any subsequent evaluations that I’ve done do not rate Mr Evans at an 18.
I asked you before if there were any other evaluations current as at 20 March 2020 that you took into account. The answer to that is ‘no’, isn’t it?---Well, other than considerations that we took as a company, beyond what’s in my affidavit and beyond what’s in this evaluation.
You see, Mr Pichler, if you were – if you were – if you were being serious and you were going to select people - - -?---Well, it’s very, very serious. Redundancies is a very, very serious situation and a very awkward situation for the - - -
I don’t – I don’t disagree, Mr Pichler, and it’s important, isn’t it, to pay close attention to the documents that you say you relied upon when you’re making decisions, isn’t it?---Yes. Yes.
Yes. And you paid close attention to this document, didn’t you?---We – we relied on it to a – a great extent, yes.
Who’s ‘we’?---Management. Mr - - -
Who’s ‘management’?---Mr Mustafa.
And Mr Mustafa was a decision maker, was he?---Correct.
And who else was a decision maker?---Matthew Hughan was also - - -
I see?--- - - - involved in the evaluation processes.
Mr Hughan still works for you, does he?---Yes.
All right. No reason why he’s not here giving evidence for Melbourne Precast or for you?---Well, only the – only the reason that I – we’re under significant pressure within the business.
Well, he’s not – he’s not invalid or on his death bed, is he, sir?---No, he’s working.
Right. Sir, what I want to suggest to you is that you selected Mr Hes, not because of his score, which was higher than Mr Evans, but because he was the HSR who had been running off to WorkSafe?---Absolutely not.
…
80 At this point, I intervened:
HIS HONOUR: Mr Pichler, could I ask you a question about [Annexure A]. That’s the employee skills and attributes evaluation?---Yes.
You said a minute ago, in an answer to a question from Mr Boncardo, that you had taken seniority into account?---Yes.
How could that be so, in the situation in which, on its face, that document shows that there are 12 other people who are less senior than Mr Hes?---Well, possible – it’s possible, your Honour, in – in the manner that we did the best we could to consider that, in context, as well as with – with being mindful of the evaluation. Look, it’s not a – it’s not a simple – I can’t give you a simple answer, your Honour. It’s not – not a simple thing to – to get through. The – the seniority situation in the – in the enterprise agreement simply makes reference to giving consideration to that, your Honour, and – and we absolutely consider that when – when evaluating. But, as the EA says, it’s consideration, it’s not mandate, and it is – it is my view that some of the employees that are less senior provide a better – better potential for the – the smaller group that we’re forwarding – forwarding – forging towards, just to the best of my ability to – to get the best group that I see and that me and management, or previous management, see going forward, your Honour. Admittedly, it’s a – it’s a – it’s a very difficult – a very difficult process, your Honour.
But, Mr Pichler, you have said in your affidavit, which you’ve said on your oath is true - - -?---Yes.
- - - in paragraph 38, that, apart from his score, as per the employee skills evaluation sheet, there was no other reason why Mr Hes was selected for redundancy, haven’t you?---Well, yes. Correct. Correct.
Now, that’s one statement that you’ve made?---Correct.
Another statement you’ve made is that Mr Hes scored 19 points, which was the second lowest, and you’ve corrected that, as you are bound to, because he was in fact the third lowest?---Third lowest. Yes, your Honour.
So how – and you then say, as a result, because he was the second lowest, his position was made redundant?---Well, yes, your Honour.
So how – what am I to make of that evidence, in circumstances where, quite apart from what you’ve said about seniority, he wasn’t the second lowest at all?---No.
Because if you’ve read – if you’ve read the form properly, he wouldn’t have been made redundant, on your own evidence?---Well, at that – at that point in time, you would – you would be correct, your Honour. Once again, the employee skills and evaluation thing is a – is a fluid thing and a dynamic thing and it’s updated and changes, but - - -
But you said that in answer to a question – or something along those lines – in answer to a question that Mr Boncardo asked you, but there’s no suggestion in your affidavit that it was fluid. It was exactly as it appears - - -?---Yes, your Honour.
- - - in [Annexure A]. It’s to – wasn’t fluid at all. It was fixed, and because it was fixed and you relied on it, you’ve sworn that that’s why his position was made redundant?---Yes, your Honour.
Yes. Very well. Thank you?---Well, your Honour, it’s fixed – it’s fixed for that – on that date and – yes, your Honour.
Decision to dismiss Mr Hes
81 Counsel then turned to the question of redundancies and the dismissal of Mr Hes:
MR BONCARDO: Mr Pichler, can I just understand the chronology here. So you have your meeting on 13 March where you say you called for redundancies?---Yes.
That’s a Friday, isn’t it?---Voluntary redundancies. Well, I don’t have a calendar, but I will accept that – if you’re - - -
All right. And Mr Hes is terminated a week later on the 20th?---Is that on Friday?
Correct. Yes?---Yes.
When did you make the decision to terminate Mr Hes?---The decision to make redundancies – to select – was redundancies by probably on the Thursday or the Friday, given – given we wished to not have the – the redundancy process open ended over another weekend.
All right. So, just so I understand your evidence, sir, and correct me if I’m wrong, you don’t – your evidence, sir, is that you didn’t tell employees on the 13th that there were necessarily going to be redundancies, you just made a call for voluntary redundancies?---No, the – the minutes that we referred to previously called for voluntaries and - - -
Well, perhaps I didn’t – I didn’t express my question very clearly. As I understand your evidence, you say that you did not tell employees on the 13th that there were going to be redundancies?---No. No.
All right. And, as I understand it from your affidavit, sir, you have no discussions with Mr Hes or anyone else about redundancies until the 20th when you make Mr Hes redundant, on your evidence?---No. No. There’s – there’s – during that week there is discussions left, right and centre, sir.
With Mr Hes?---With every employee, including Mr Hes.
Well, what day? What day?---Every day on that week on the factory floor. People are concerned about their jobs and the – that week is – is a tortuous week for everyone concerned, sir, and the employees that are addressed at the meeting on the Friday, on the 13th, are – are – and – and if I can just paint the landscape that I am working alongside with these employees, the Monday, the Tuesday, the Wednesday, the Thursday - - -
Well, let’s just focus on the Thursday for the time being?--- - - - during that week there is ongoing dialogue - - -
Right. I understand, Mr Pichler. Thank you?--- - - - with every employee.
Mr Pichler, you just told us that you made a decision to make employees redundant on the Thursday?---No, the toolbox meeting on the Friday called for voluntary and - - -
All right. But what I’m – what I’m - - -?--- - - - and we advised on the Friday that if – if there is no volunteers, then the company would have to make redundancies.
You made a decision on the Thursday to make people redundant, to make Mr Hes redundant, did you? No, that – that was already predetermined in the event that there was no voluntary redundancies.
So Mr Hes was going to – was going to be made redundant?---Some – on the Friday - - -
On Friday, when, the 13th?--- - - - the 13th - - -
Yes?--- - - - when the announcement was called, we can’t – we can’t have possibly decided Mr Hes would be redundant - - -
When did you decide that, the Thursday?--- - - - because we’re waiting for volunteers.
All right. When did you decide Mr Hes was going to be made redundant?---The – when it became clear – and I can’t recall – during the course of that week being involved with 20, 25 employees, day-to-day, and the – the – getting the feel on the Monday or the Tuesday or the Wednesday, that there was not going to be any voluntary redundancies, so it would – it became clear early on in the week that we would have to select redundancies.
And nowhere in your affidavit, sir, is there any reference to you telling Mr Hes prior to the Friday of the 20th, that he was to be made redundant, or that you were considering making him redundant?---I would have to take you on your word that there is no – I thought there may have been some - - -
Well, why don’t I put this proposition to you. You did not have any discussions with Mr Hes about him becoming redundant, at all, between Friday the 13th and when you told him he was to be terminated on the 20th?---No. No, that’s not correct.
When did those discussions occur?---I would be fairly certain that those discussions between me and Mr Hes revolved informally on the factory floor, maybe more than one occasion on the Wednesday or Thursday.
This was before you decided to make him redundant, was it?---Yes.
All right?---And - - -
Are you just – are you just making that up, Mr Pichler?---No. No. This is – this is the course of events that take place. If you’ve not – if you’ve not been in the awkward position of calling voluntary redundancies and working with a – a group of employees, it’s not an easy scenario and there’s a lot of discussions and a lot of dialogue going on with all employees. It would be very hard for me to – to summarise that landscape in an affidavit.
Is it difficult for you to summarise that, sir, because it didn’t happen?---No.
No?---No, it absolutely happened. It’s almost impossible to fathom that it cannot happen, if you imagine yourself in the workplace under a call for voluntary redundancies and you are an individual working alongside employees who actually respect what you do in the factory and have the – have the – the freedom to approach me any and all times, and – and – and get some reassurance about where they’re at, what the company is doing, and ongoing dialogue to that effect.
…
82 At this point, I again intervened:
HIS HONOUR: Mr Pichler, in these informal discussions that you say you had with Mr Hes on the factory floor - - -?---Yes.
- - - before the Friday when his position was made redundant, what did you say to him?---It was more discussions about how his – what’s his thoughts on redundancy, are you still happy at – at work, do you see yourself here long term. Just – just general chit chat to try – try and get a vibe from all employees as to where they’re at with – with their – with their own consideration.
Was the gist of Mr Hes’s response, according to you, that he was – he did wish to be there long term?---No, your Honour. He – he seemed – he didn’t seem to be a happy chappie and I – I don’t – I – I don’t know whether that was stuff going on outside in his life or – or not, your Honour; I didn’t go into that area with him. But, no, your Honour, he didn’t – he didn’t seem - - -
Well, did you ever – did you ever talk to him about potential redeployment to some other position?---Yes, your Honour. One of the things we – one of the things that we discussed generally on that week is to – to see if there’s any other roles that might suit people that are not – are no longer hands on in production and – and more to see if they would – if they would consider shifting to pre – what we call ‘preproduction work’, which I would have to go into detail describing all that, but it – the short answer, your Honour, is absolutely. Yes. Yes. Ongoing discussions with employees about what else they can learn, what else they can do, what else would they like to do. Yes, your Honour.
Yes, very well.
83 Counsel continued:
MR BONCARDO: Where was Mr Hes going to be potentially redeployed to, Mr Pichler?---Well, we did have a discussion about preproduction work.
You did or you didn’t, I’m sorry?---We did.
You did?---We did.
Right. Where’s that in your affidavit?---Well, it’s – it’s not, sir.
No, because you’re making it up?---No, absolutely not. A lot of – as I mentioned, during that course of – of the week, a lot of – there’s a lot of dialogue that goes on. And, as you are aware, I’m not – I’m representing myself, sir. It’s not an excuse, but there’s a lot going on within my world to – to have everything that has gone in – gone on during the events leading up to a redundancy to put into – into an affidavit.
Sir, just out of fairness to you, I want to suggest to you that your evidence that you had discussions during the course of the week with Mr Hes is incorrect and wrong?---No, it’s not incorrect or wrong. I absolutely – you would have to – you would have to accept that it’s virtually impossible under a voluntary redundancy – redundancy call, for – for there to be no discussions between me and the group of employees when looking for voluntary redundancies. Sorry, sir, but that’s – that’s an impossible scenario to imagine in any workplace.
Annexure A revisited
84 Counsel then returned to the question of Mr Pichler’s evidence about the provenance of Annexure A, as follows:
Now, you would agree with me, wouldn’t you, that this document was completed, with the exception of Mr Hes, in mid or about – by about mid 2019 by Mr Mustafa, Mr Hes, Mr Evans and Mr Hughan?---I would concede that, but I don’t have a copy. Sorry, should I have it in front of me?
Well, I’m asking, sir, whether you – well, actually, I will move on. You’ve conceded. Thank you. And Mr Hes’s name was added to it subsequent, wasn’t it?---It was – Mr Hes’s score was included at a point in time after he was no longer a level 5 worker and no longer on the – on the panel of – of the four people that we previously discussed.
Mr Hes’s score was included in March this year, wasn’t it?---The exact date that Mr Mustafa updated that, not sure, but February/March, yes, around about that.
Mr Mustafa updated it, didn’t he, by putting in figures that you directed him to put in, in respect of Mr Hes?---No. No. There was no – there was no blanket direction. There was a discussion with Mr Mustafa.
So you had a discussion with Mr Mustafa about Mr Hes and you determined, what, that Mr Hes would receive certain scores for the relevant criteria under this document?---What was the question?
I will ask the question again. Is your evidence now that you and Mr Mustafa had a discussion about Mr Hes and performed an evaluation of him?---Correct.
And, sir, it’s the case, isn’t it, that that is just a nonsense?---Why would you say that’s a nonsense? It’s not a nonsense.
Mr Mustafa was told by you to insert the scores for Mr Hes onto this document?---No.
And he was told by you to do that in March this year?---No.
And Mr Mustafa never participated in any evaluation of Mr Hes. Correct?---No, he absolutely did.
So it was just you and Mr Mustafa, was it?---Mr Hughan retrospectively reviewed it and agreed with it.
When you say “retrospectively”, when? Retrospective to what?---Well, after – after Mr – after the evaluation spreadsheet was updated to include a score for Mr Hes - - -
And can I just stop you there. When was that? When do you say that happened?---I’m agreeing with you that it must have been around February/March.
Well, I didn’t suggest February, sir, I suggested March?---Well, in that – in that timeframe, that – with consultation with Mr Mustafa, who, I will remind you, created this evaluation and will remind you that it was Mr Mustafa that effectively demoted Mr Hes, so that he brought up that Mr Hes now needed to be included in the score – included in the evaluation. So, after Mr Mustafa provided evaluations and consulted with me in regards to that evaluation, we – we printed it. If I back up for a minute, we went to Mr Mustafa’s laptop or computer. He popped up the spreadsheet, spent some time looking at each category. We probably spent half an hour on it. I left him with it. He completed it. I came back. He – I said yes. It seems – seems okay by me. Printed it. Bounced it off Mr Hughan at some point during the day, or the day after, or within a week or so, and he – he also was happy with the – with the overall score.
And that’s in respect to Mr Hes? Is that your evidence?---Yes.
Just in respect to Mr Hes?---Well, he was – Mr – the – the other – yes, it was – it was - - -
Because everyone else was done, weren’t they, according to you?---No. No, Mr Glen Evans - - -
I see?--- - - - would have been there originally. I – I think you noted that a moment ago. But he was no longer employed - - -
Well, I wasn’t clear in my question. Every other employee on this sheet had had a score attributed to them at the time you and – you say you and Mr Mustafa and Mr Hughan were engaged in evaluating Mr Hes?---Except for Matt [Hughan].
And Mr Hughan’s name is there and he doesn’t have a score, does he?---That’s correct.
All right. Sir, why didn’t you ask Mr Mustafa, or put to Mr Mustafa any of these points when you were cross examining him yesterday about how you say this document came about?---I believe I addressed the document with Mr Mustafa in regards to its authenticity and if I – if I did myself a disservice to proceed with further discussions, but I – I – I believe we – we – well, if we discussed the score and it was his score and – and it’s not a direction - - -
That it was a collaborative effort, according to you?---Well, it was absolutely a collaborative effort.
You, Mr Mustafa and Mr Hughan?---Mr Hughan, as I just said, post – post having Mr Mustafa set up the entries and set up the – the scores, Mr Hughan had a look at it, yes.
…
85 I then intervened, to ask Mr Pichler about his understanding of Mr Mustafa’s evidence about the provenance of Annexure A:
HIS HONOUR: … You knew, and you know, that Mr Mustafa’s evidence was that this document, employee skills and attributes evaluation, which included no reference to Mr Paul Hes, was something created in March 2019. You - - -?---Yes. Yes, your Honour. In that – sorry, your Honour, I’m a bit confused as to – as to the transcript and the reference and the context, but, yes, your Honour, the – the – when – when Mr Hes was part of the - - -
But what relevance does that have, other than by way of background to explain the provenance of what has become exhibit A1?---Sorry, your Honour, I’m not following this – this part of the questioning. Sorry, your Honour.
Well, Mr Mustafa’s evidence at paragraph 9 of his affidavit is that – well perhaps it’s 8 and 9 – but he describes getting together with Mr Evans, Mr Hes and creating the – a March 2019 version of this document?---Yes.
And what Mr – and you – you knew yesterday, didn’t you, when you were cross examining Mr Mustafa, that Mr Mustafa was saying that he had never seen TP-8 to your affidavit, which is now - - -?---Yes.
- - - the full version of which is now [Annexure A]?---Yes.
He had never seen that document until he read your affidavit and it wasn’t his signature that appeared on it?---Yes. Yes, that’s – that’s what he said, yes.
And at the time you were cross examining him, you knew that that was his position?---Well – well, your Honour, I know what his actual position is, if I can say that, but I know that we were saying it at evidence yesterday and I also know what – what I say is – is – is the factual background, your Honour. Sorry, I’m – sorry, I’m still a bit confused on this point. If you want me to – if we try to discuss it further, I can, or just if you could, sir, offer me another question.
Well, what part of my questions has confused you?---Well, the – the two positions of what Mr Mustafa says yesterday, as opposed to what I know as the evolution of this evaluation since he was employed in 2019. I guess not being able to read these points while I’m talking and – and absorb it all, your Honour, I’m just a – a little bit lost. All I can tell you is the truth, your Honour. Mr Mustafa was involved - - -
Well, I don’t want to be unfair to you. Do you have a copy of Mr Mustafa’s affidavit?---Yes.
And can I just ask you to look at paragraphs 8, 9 and 10?---Yes. ‘When I commenced working at MPC, rudimentary skills matrix in place January 2019’. Yes. Yes. With the – the three supervisors, including Mr Hes. Yes, your Honour.
And they sat down – in paragraph 9 he says that he sat down with Hes, Evans and Hughan and evaluated the employees in March 2019?---Yes.
You weren’t part of it because you weren’t in the day-to-day running at that time. Supervisors weren’t subject to it, so his name wasn’t in the March ’19 version, which - - -?---Yes.
- - - we don’t have in evidence, and he swears that the only time that he participated in the skills evaluation or completion of a document like the one annexed as TP-8 to his affidavit, and then he says, ‘Well, as for TP-8, the document dated 20 March 2020, I had never seen that until I read Mr Pichler’s affidavit and that he - - -’?---Yes, your Honour.
‘- - - didn’t participate in any assessment of Mr Hes’. And my question of you was, you knew that that was his position. You may disagree with it, but you knew that that was his evidence and his position when you cross examined him?---Yes.
Yes, thank you. Yes, Mr Boncardo.
86 Counsel continued:
MR BONCARDO: Mr Pichler, what I want to suggest to you, sir, is that the first time you have said anything at all about you being involved in assessing Mr Hes was when you gave your evidence a few minutes ago, in answer to my questions?---No, absolutely not.
Where in your affidavit do you refer to you participating in evaluating Mr Hes?---Off the top of my head, I don’t think I do.
And that’s because you have just made that up, sir?---No, absolutely not.
And you were also being untruthful to the registrar, weren’t you, when you said that Mr Mustafa was responsible for doing the evaluations, including of Mr Hes?---He absolutely was responsible, after I spoke to him about including a person that was no longer a part of the leadership team.
What I want to suggest to you, sir, is that none of those things happened?---They absolutely happened.
And what occurred was you told Mr Mustafa to include figures for Mr Hes and it was you who dictated those figures to him?---You would have to understand the relationship between me and Mr Mustafa.
Well, do you agree or disagree with that proposition?---I absolutely disagree that Mr Mustafa would not have me dictate anything to him.
And it’s the case, sir, isn’t it, that you determined to insert these figures for Mr Hes to justify getting rid of him?---Absolutely not.
And you wrote Mr Mustafa’s name on this document, and put a signature of sorts next to it, to make it appear as if - - -?---Absolutely - - -
- - - Mr Mustafa – just wait for the question – to make it appear as if Mr Mustafa had been involved in assessing Mr Hes?---Absolutely not. The names – if you would like me to concede to you something, the names are written down by me and the – the document was given, handed to, on, I think at the time, on a – on a – on a poor desk and a – a dirty desk, on an angle.
Well, which time?---Around the time of what we are discussing of February/March when we decided that this should be reviewed and - - -
All right. So just so I understand your evidence, sir - - - ?---That is the complete – a complete evaluation, given that we are ongoing downsizing the business due to the circumstances which I’ve told you. That we had to – and we had to update this to include everyone, aside from one person now, and it’s the …
So, Mr Pichler, just so I understand what you’ve just said, these names and these signatures were put onto the document sometime in February or March. Is that right?---Around about the time that this was printed out by Mr Mustafa.
Right. Okay. Which was when?---Around about the time that we are – we are generally talking, February/March.
All right. Around February/March?---I can’t give you an exact date.
So why on earth is it dated 20 March then, sir?---The – the final signoff of the document – well, you’re asking me about the landscape around about the time building up to 20 March, and this is my understanding of the question, and what I - - -
Mr Pichler, I don’t want you to be under any misapprehensions about what I’m asking you, so I’m going to start again. You have given evidence, as I understand it, that this document was, to use your expression, ‘signed off’ sometime in February and March. You remember giving that evidence?---If that’s what I said. I don’t recall saying ‘signed off’. I am saying that it – it commenced to be reviewed in around about that time and ultimately dated, accepted and signed.
Mr Pichler, what I want to suggest to you, you put Mr Rosenbrock’s name on this, haven’t you?---Mr Rosenbrock – down the bottom?
Yes?---Yes. As I was saying before, the names are written by me. I’ve conceded that. I’m not denying that. And I put it to the – I signed it, Matt Hughan signed it and – and Ziya [Mustafa] signed it. I never asked Mr Rosenbrock to sign it and I never suggested he should sign it. There’s - - -
Well, why on earth is his name on it, sir?---I’m just getting to that. The reason he’s on it is because it was floated – this was referenced and referred to in a meeting with Mr Hes and Mr Rosenbrock in relation to his redundancy either on the day of the redundancy, or prior to, or both. So he was merely included as – as a person attending, for my reference, to having seen the document, and I didn’t bother asking him to sign it, because he would have refused on – on his rights to do so as – I guess as industrial – industrial rep, but - - -
The reason you wrote Mr Rosenbrock’s name was because you wanted to make it appear that he accepted the evaluation, just as you wanted to make it appear that Mr Mustafa accepted the evaluation?---No, absolutely not. He – Mr Rosenbrock has clearly stated he doesn’t accept Mr Hes’s score in the – in the redundancy meeting that – that took place and this evaluation was shown or used as reference in that meeting. And Mr Mustafa and Mr Rosenbrock are – are – are completely different, in that Mr Rosenbrock was merely noted for me to – to – to diarise the fact that he has been shown it during the meeting, or prior to the meeting of the redundancy with Mr Hes. But, Mr Mustafa, along with Mr Hughan, was asked to sign off on it preceding the period of time leading up to 20th of the 3rd or on the day. I don’t – I don’t understand why this – this sequence of events seems mysterious to you – to use a – a word or – incorrect word or – perhaps, but it is a bona fide and real scenario that I can’t possibly think that it could have been done much better, given the circumstances. You’re asking me why have I admitted this and why have I admitted that and – and you are excluding the totality of the – the narrative that I’m doing the best I can and running a business that’s – that’s heading towards voluntary administration, sir.
Mr Pichler, you know, or you knew, I should say, that if Mr Hes was terminated, he would no longer be able to be the HSR, correct?---No.
Well, he would continue being the HSR if he ceased being an employee? That’s not a – is that what you’re suggesting?---Well, I think what your suggestion is – I mean if – if Mr Hes is made redundant, he’s no longer going to be the HSR.
Correct. Thank you, sir. And you knew that, didn’t you?---Well, it’s impossible for me not to know that, sir, but I – I perhaps would say that he was away for three weeks, two days after the alleged appointment of him as the HSR. I will also point out that there’s nowhere in the EA that affords a - - -
I didn’t ask you about the EA, Mr Pichler?---Okay.
And, Mr Pichler, if Mr Hes was terminated, you knew he no longer would be able to run off to WorkSafe and make reports about Melbourne Precast and you. He would be out of the workplace?---If Melbourne Precast was unsafe, as you’re alluding, then – then – then Mr Fogarassy would have made the appropriate complaints with WorkSafe and undertaken due process to have – have it resolved. It was - - -
Did you not – did you not want to answer my question, sir, because … ?---Absolutely not – absolutely not was Mr Hes’s redundancy, being the 19th redundancy out of 25 out of 72, starting from April 2019, absolutely not had anything at all to do with his position, alleged position, of HSR, for effectively two days. Absolutely not. And, again - - -
I don’t think I asked you a question about that, Mr Pichler?---Well - - -
So I just ask you to direct yourself to my questions. All right. Now, Mr Pichler, what I want to suggest to you is that you got rid of Mr Hes or you decided to get – I’m sorry?---Absolutely not.
I haven’t finished the question, Mr Pichler, so why don’t you wait for the question before answering. You decided to get rid of Mr Hes because he was the HSR that had been running off to WorkSafe. Correct?---Absolutely not.
And it was better for the business, so far as you were concerned, to get rid of Mr Hes?---Absolutely not.
The legislation
87 Part 3-1 of Ch 3 of the FW Act is entitled “General protections”. Division 3 of Pt 3-1 is entitled “Workplace rights”.
88 Within that Division is Section 340, which relevantly provides:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
…
(b) to prevent the exercise of a workplace right by the other person.
...
89 “Adverse action” within the meaning of s 340 includes dismissal: s 342(1), Item 1.
90 Section 341 of the FW Act relevantly defines “workplace right” as follows:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
91 “Workplace law” is defined by s 12 of the FW Act to mean:
(a) this Act; or
(b) the [Fair Work (Registered Organisations) Act 2009 (Cth)]; or
(c) the Independent Contractors Act 2006; or
(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).
92 “Workplace instrument” is defined by s 12 of the FW Act to mean an instrument that:
(a) is made under, or recognised by, a workplace law; and
(b) concerns the relationships between employers and employees.
93 Section 341(1)(c)(i) relevantly provides that a person has a workplace right if the person is able to make a complaint to a body that has the capacity under a workplace law to seek compliance with that law. The applicants submit that WorkSafe is such a body in reliance upon ss 7 and 8 of the OHS Act, which relevantly provide as follows:
7 Functions of the Authority
(1) The Authority [WorkSafe] has the following functions—
…
(c) to monitor and enforce compliance with this Act and the regulations;
(d) to administer, examine, review and make recommendations concerning existing or proposed registration or licensing schemes relating to occupational health, safety and welfare;
…
(f) to disseminate information about the duties, obligations and rights of persons under this Act or the regulations and to formulate standards, specifications or other forms of guidance for the purpose of assisting persons to comply with their duties and obligations;
…
(k) to develop and implement programs to provide incentives for employers—
(i) to implement measures to eliminate or reduce risks to health or safety; and
(ii) to otherwise improve occupational health, safety and welfare;
(l) to monitor the operation of measures taken and arrangements put in place to ensure occupational health, safety and welfare;
…
8 Powers of the Authority
(1) Subject to this Act, the Authority has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
…
94 Section 360 is in the same Part of the FW Act as s 340, and provides as follows:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
95 Section 361 of the FW Act relevantly provides:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Consideration
96 It is uncontroversial, or in any event it cannot be disputed, that Mr Hes had a workplace right under s 341(1)(a) of the FW Act.
97 First, Mr Hes’s HSR role was a “role or responsibility” under a “workplace law” because it was governed and protected by the OHS Act: see, e.g., Australian Workers’ Union v Chemring Australia Pty Ltd [2019] FCA 750 at [22] (Snaden J). (The OHS Act is a “workplace law” for the purposes of s 12 because it is a law of a State that regulates the relationships between employers and employees including by dealing with occupational health and safety matters: see, e.g., Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70 at 86-87 [78] (Murphy J); OHS Act ss 2, 4, 7-8, Pt 3.)
98 Secondly, since the role was conferred pursuant to the Agreement (at cll 57-59), it was also a “role or responsibility” under a “workplace instrument”. (The Agreement is a “workplace instrument” for the purposes of s 12 of the FW Act because it is an instrument made under, or recognised by, a workplace law (namely, the FW Act), and concerns the relationships between employers and employees: see, e.g., Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 at [25] (Wigney J).)
99 Mr Hes also had a workplace right under s 341(1)(c)(i) of the FW Act on the basis that he was able to make a complaint to WorkSafe. WorkSafe is a body of the type referred to in s 341(1)(c)(i) because under the OHS Act it has the capacity to seek compliance with that Act: see generally OHS Act ss 7-8, Pt 9. Mr Hes had a right to complain to WorkSafe by virtue of cll 59.4 and 59.10 of the Agreement, which appear under the heading “Safety” and relevantly provide as follows:
59.4 Procedure for resolving issues
As soon as possible after an issue has been reported, the Employer’s safety supervisor or another management representative and the health and safety representative must meet and try to resolve the issue.
…
59.9 Inspector may be requested to attend workplace
59.10 If an issue is not resolved under clause 59.4, within a reasonable time … any of the parties attempting to resolve the issue may ask the WorkSafe Victoria [sic] to arrange for an inspector to attend at the workplace as soon as practicable to enquire into the issue.
…
100 Mr Hes also had a right to make a complaint about his employment within the meaning of s 341(1)(c)(ii) – namely, to make a complaint to WorkSafe that MPC had contravened the OHS Act: see PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; 292 IR 317 at 324 [20] (Rangiah and Charlesworth JJ).
101 Mr Hes exercised his right to complain to WorkSafe on 18, 20 and 25 February 2020.
Whether MPC contravened s 340 of the FW Act
102 It is presumed by virtue of s 361 of the FW Act that Mr Hes was dismissed for the reasons alleged by the applicants, unless MPC proves otherwise.
103 The reasons for dismissal alleged by the applicants in the statement of claim include:
(1) because Mr Hes had a workplace right as an HSR;
(2) because Mr Hes had exercised a workplace right to make complaints to WorkSafe;
(3) in order to prevent Mr Hes from exercising a workplace right to make complaints to WorkSafe;
(4) in order to prevent Mr Hes from exercising a workplace right by having the role or responsibility as an HSR.
(I deal with the claim in relation to personal leave later.)
104 In his written opening submissions, Mr Boncardo contended that MPC had not discharged its onus, for reasons which include the following:
(1) Mr Pichler’s assertion that Mr Hes was chosen because he received the second lowest score on the evaluation is demonstrably false – Mr Hes received the third lowest score and Mr Evans, who in fact received the second lowest score, remains employed.
(2) Annexure A is “a sham and a contrivance”, manufactured by Mr Pichler for the purposes of justifying dismissing Mr Hes, and was not, as Mr Pichler asserted, prepared by Mr Mustafa.
(3) Mr Pichler had expressed antipathy and hostility about Mr Hes’s performance in his role as HSR and about his complaints to WorkSafe.
(4) Mr Hes was described as the “Safety Rep running off to WorkSafe” and a person with whom MPC had “issues” in the email from Workplace Wizards to Mr Pichler on 18 February 2020, which proves that Mr Pichler knew, and was unhappy about, the fact that Mr Hes had made complaints to WorkSafe.
(5) The purported justification for Mr Hes’s dismissal – that he was a “poor performer” – is spurious. No complaint had ever been made about Mr Hes’s performance.
105 In his closing address, Mr Boncardo made submissions about Mr Pichler’s credibility as follows:
(1) Mr Pichler’s evidence about his 18 February request for advice from Workplace Wizards was untruthful and on no rational analysis is the email sent by Mr Ganeson to Mr Pichler (see [50] above]) referable to anyone else or anything else other than Mr Hes’s complaints to WorkSafe that day, of which Mr Pichler had been made aware by Mr Mustafa (which awareness Mr Pichler did not dispute). The true reason for the inquiry to Mr Ganeson was to complain about Mr Hes, who was, as the email records, “going off to WorkSafe and making complaints about OHS issues”. That is “a most telling matter” when it comes to assessing the mental processes that Mr Pichler engaged in when he selected Mr Hes for redundancy, as opposed to any one of the other employees listed in Annexure A.
(2) The 21 February 2020 notice to all employees (at [42] above), which refers to Mr Hes having chosen “to unlawfully hold meetings delaying production recently”, shows that Mr Pichler took issue with Mr Hes’s activities as an HSR, including his complaints to WorkSafe on 18 February and his meeting with Mr Mustafa and Mr Hughan in relation to Mr Griffiths on 20 February.
(3) As to Annexure A:
(a) Messrs Hes and Rosenbrock both gave uncontroverted evidence that the document they were shown on 20 March, immediately before Mr Hes’s employment was terminated, did not have any writing or signatures on it;
(b) Mr Pichler’s evidence in cross-examination, that Annexure A was produced by virtue of a collaborative effort between him and Mr Mustafa, and then endorsed by Mr Hughan, was a false explanation. It was an explanation that had never previously been proffered, and which was entirely inconsistent with unchallenged evidence given by both Mr Hes and Mr Rosenbrock. Messrs Hes and Rosenbrock gave evidence that at the time they were shown Annexure A, when Mr Hes was dismissed, Mr Pichler said he “didn’t do the appraisal” and that someone in management had handed it to him;
(c) Mr Hughan still works at MPC and no explanation was given as to why he did not testify;
(d) Mr Pichler’s evidence in cross-examination that something other than the score of 19 (itself never explained) motivated him to dismiss Mr Hes should also be rejected as a recent invention;
(e) Mr Mustafa’s evidence that he had nothing to do with Mr Hes’s appraisal should be accepted;
(f) taking into account Mr Mustafa’s evidence and the unchallenged evidence of Messrs Hes and Rosenbrock (that the document they saw on 20 March 2020 when Mr Hes was dismissed did not have any handwriting on it), the court should “be satisfied that those names and signatures were added by Mr Pichler as a means to bolster what he, and through him, Melbourne Precast sought to paint as the … true reason for the dismissal, namely that [Mr Hes] hadn’t done particularly well on this assessment”;
(g) given that Mr Hes was not in fact given the second lowest score on Annexure A, it “defies belief” that Mr Pichler genuinely selected Mr Hes for redundancy based on that document. If he had, he would have read the document carefully and realised that an “18” appeared next to Mr Evans’s name and a “19” appeared next to Mr Hes’s name; and
(h) Annexure A is a contrivance designed to shield the true reason for Mr Hes’s dismissal.
106 In summing up the claims relating to Mr Hes’s HSR role, Mr Boncardo submitted that the court:
… would not be satisfied that … Melbourne Precast has discharged the onus imposed upon it by section 361 to prove that none of the substantial and operative reasons for Mr Hes’s dismissal concerned his workplace right in terms of his position as a HSR, his … workplace rights, which he had exercised to make complaints to WorkSafe and/or that his dismissal was not for the purpose of preventing him from continuing to exercise his workplace rights as a health and safety representative or to make complaints to WorkSafe Victoria.
107 Mr Pichler’s arguments in response can be summarised as follows:
(1) His decision to select Mr Hes for redundancy was made on the basis of the scores in Annexure A; alternatively, he took into account both Mr Hes’s score and his seniority.
(2) He was not aware, or did not accept that, Mr Hes had been elected as HSR, or that he had made complaints to WorkSafe.
(3) His objection to Mr Hes’s behaviour, as demonstrated by his 21 February notice to all employees, was that Mr Hes was not following proper processes, not that he was complaining to WorkSafe.
(4) MPC had been forced to make numerous redundancies because of its financial difficulties. Mr Hes had not been singled out in this respect.
(5) Messrs Hes, Mustafa and Rosenbrock were not credible and should not be believed.
108 As is obvious from the lengthy extracts of the transcript extracted above, Mr Pichler was an unsatisfactory witness, who repeatedly dissembled, and gave long, evasive and disingenuous answers, even to the simplest of questions.
109 On the critical question of the circumstances in which Annexure A came into existence, I have formed the regrettable conclusion that Mr Pichler’s evidence – that Mr Mustafa conducted the evaluation of Mr Hes’s “skills and attributes” and then signed it – was untruthful. In my view, the document is exactly what Mr Boncardo said it is: a contrivance by Mr Pichler to conceal the real reason for Mr Hes’s dismissal. In summary, to use Mr Boncardo’s expression, Mr Pichler’s evidence about Annexure A “defies belief”, for each of the reasons he advanced set out at [104] and [105] above. Further:
(1) Mr Pichler’s assertion that Mr Hes was chosen for redundancy because he had the second lowest score was demonstrably untrue; and
(2) Mr Pichler’s evidence that Mr Hes was dismissed because he was a poor performer was also untrue, because no complaints were ever made about his performance. On the contrary, there was a host of evidence that Mr Pichler did not challenge that Mr Hes was a stellar employee.
110 It follows that I reject Mr Pichler’s evidence that he dismissed Mr Hes based on his score of 19 as recorded in Annexure A, either alone or in combination with consideration of Mr Hes’s seniority.
111 I also reject Mr Pichler’s assertion that he was not aware of Mr Hes’s appointment as HSR, or that he was not aware of the WorkSafe complaints. Messrs Mustafa and Hes deposed that Mr Mustafa told Mr Pichler about the WorkSafe complaints. Mr Pichler did not challenge them about that evidence. In any event, Mr Pichler’s assertion that he was not aware of Mr Hes’s appointment flies in the face of the Workplace Wizards email (received on the day of Mr Hes’s appointment) concerning Mr Pichler’s complaint about “the Safety Rep who [was] ‘running off’ to WorkSafe and raising OH&S issues”. Given that Mr Pichler conceded that he had “no issue” with Mr Hes’s predecessor, Mr Fogarassy (see [77] above), Mr Pichler could only have been complaining about Mr Hes.
112 Mr Pichler also contended that, if it appeared from his 21 February notice to all employees that he took exception to Mr Hes’s behaviour, this was because Mr Hes had been failing to adhere to “appropriate processes”, and not because he had been making complaints to WorkSafe. During cross-examination, Mr Pichler said:
Mr Hes and Mr Rosenbrock were, I guess, highlighted in the context of this memo in that they seemingly were not following the appropriate processes in accordance with the Enterprise Agreement in that they were seeking to have meetings during paid hours of work which is not permissible under the EA and – and – and this goes to – to my taking advice with Mr Ganeson in relation to proper processes and what – in order – in order to, since October 2009, bring myself up to speed with the EA and how we all should act in accordance with that EA, be that myself or its employees, whoever they are, and it was not – it is an overall sense of discussing and formalising what the – the – the appropriate processes to – to make complaints and meetings whether they’re about industrial relations through Mr Robsenbrock or whether they’re safety through Mr Fogarassy or whoever – whoever the HSR rep has been in 30 years of business, sir.
113 Like much of Mr Pichler’s evidence, it is difficult to know what to make of this response, and in particular what “processes” he claimed that Mr Hes was not following.
114 But in any event, Mr Pichler affirmed in his affidavit that “the manner in which Mr Hes was raising his safety concerns [was] not in accordance with the [Agreement] nor our ordinary protocols. However, ultimately, this had no bearing on the decision to make [his] position redundant”. In those circumstances, I do not accept his oral evidence that endeavoured to suggest to the contrary.
115 The final argument raised by Mr Pichler was that, due to the financial difficulties in which it finds itself, MPC was being forced to make many people redundant – not just Mr Hes. Significant doubt was cast over how many MPC employees had in fact been made redundant during Mr Pichler’s cross-examination. Nonetheless, even taken at its highest, Mr Pichler’s invocation of MPC’s financial difficulties does not address the critical question of why it was that Mr Hes was selected for termination over other employees, despite his seniority and his skills.
116 It follows that MPC has failed to prove that the reasons for Mr Hes’s dismissal alleged by the applicants were not in fact the substantive and operative reasons for the dismissal. It follows that the pleaded contraventions of s 340 of the FW Act by MPC are made out, to the extent they relate to Mr Hes’s role as HSR or his WorkSafe complaints.
Failure to comply with the consultation provisions of the Agreement
117 Section 50 of the FW Act provides that “[a] person must not contravene a term of an enterprise agreement”.
118 At all relevant times, the Agreement covered and applied to Mr Hes, MPC and the CFMMEU.
119 Clause 2.1 of the Agreement defines “Redundancy” to mean “a situation where an employee ceases to be employed by an employer to whom this agreement applies, other than for reasons of misconduct or refusal of duty”.
120 Clause 11.3 imposed an obligation on MPC, if it had made a decision to introduce a major workplace change likely to have a significant effect on a number of employees, to notify employees who will be affected by the decision. “Significant effects”, unsurprisingly, include termination of employment (including redundancy): cl 11.8.
121 Clauses 11.4-11.7 provide:
11.4 As soon as practicable and prior to implementation, the Employer must discuss with the relevant Employees and/or their nominated representative/s (e.g. Union or other representative) the introduction of the change; and the effect the change is likely to have on the Employees. The Employer must discuss measures to avert or mitigate the adverse effect of the change on Employees.
11.5 For the purposes of the discussion the Employer will provide to relevant Employees and/or their nominated representative(s) in writing:
(a) All relevant information about the change including the nature of the change proposed;
(b) Information about the expected effects of the change on the Employees; and
(c) Any other matters likely to affect the Employees.
11.6 However, the Employer is not required to disclose confidential or commercially sensitive information.
11.7 The Employer must give prompt and genuine consideration to matters raised about the major change by relevant Employees.
122 The applicants submit that Mr Pichler’s 13 March 2020 announcement conveyed that a definite decision had been made to introduce a major workplace change likely to have a significant effect on employees: employees would be made redundant. It was not an announcement of a process of consultation. They submit that no opportunity was given to employees to be heard on this “definite decision” before it was implemented; and no chance was afforded to employees or their representatives to have their views taken into account before any final decision was made. There was also no provision of information of the kind required by cl 11.4, or any information at all, other than the “bald pronouncement” that two or three employees would lose their jobs. Nor was there any provision of information in writing of the kind required by cl 11.5. Further, and due to the failure of MPC to comply with any of cll 11.3-11.5, there was no compliance with cl 11.7.
123 During cross-examination, Mr Pichler asserted that he did consult verbally with employees about the planned redundancies, in particular Mr Hes, in the period between the 13 March announcement and Mr Hes’s dismissal on 20 March. In my view, that evidence was, as counsel submitted, “invented during the course of cross-examination”. In any event, the proposition was not put to Mr Hes. I do not accept that such “consultation” occurred, in accordance with cll 11.3-11.4 of the Agreement or otherwise. Further, as the applicants submit, it was never suggested that Mr Pichler had provided the written information required by cl 11.5.
124 It follows that Mr Hes’s dismissal was contrary to, and in breach of, the provisions of cl 11 of the Agreement.
125 A declaration will accordingly be made that MPC contravened s 50 of the FW Act.
Failure to comply with the redundancy provisions of the Agreement
126 Clauses 19.1, 19.3 and 19.4 of the Agreement provide:
19.1 Subject to the following procedure, it is agreed that it is the Employer’s prerogative to determine the order of selection of Employees for employment or retrenchment.
19.3 Voluntary terminations will be encouraged as a first step.
19.4 The seniority of employees – within classifications, experience or skills held – will be observed by the Employer in selecting employees for retrenchment.
127 The applicants submit, and again Mr Pichler did not seek to gainsay, that cl 19.3 imposes an obligation on MPC to encourage voluntary redundancies before moving to involuntary redundancies. The applicants submit that to “encourage” means to “promote, advance, or foster”. They say further that the evident purpose of cl 19.3 is to ensure that employees who are willing to be made redundant are offered redundancy before MPC dismisses employees who are not willing to be made redundant. It is submitted that, in the circumstances, MPC was obliged to take steps to promote the option of employees voluntarily determining to be made redundant before proceeding to involuntary redundancies.
128 I agree. I also agree that no steps were taken by MPC to encourage or promote voluntary redundancies, as a first step or at all, before Mr Hes was made redundant. Mr Pichler, in fact, made it clear at the 13 March 2020 meeting that MPC was not required to accept voluntary redundancies. In the circumstances, this amounted to a contravention of cl 19.3 of the Agreement.
129 Clause 19.4 imposed an obligation on MPC to observe the seniority of employees when selecting employees to be made redundant. There were 12 employees less senior than Mr Hes at the time of his dismissal, as Annexure A proves. The applicants submit therefore that MPC did not take seniority into account in deciding to dismiss Mr Hes, and in doing so failed to comply with cl 19.4 of the Agreement.
130 At one point during cross-examination, Mr Pichler asserted that seniority was in fact taken into account. However, this assertion contradicts the explicit statement in his affidavit that “[a]part from his score as per [Annexure A], there was no other reason why Mr Hes was selected for redundancy” (emphasis added). Further, Mr Pichler’s assertion that seniority was taken into account was never otherwise explained or proved. On the contrary, when I asked Mr Pichler to explain the assertion, his response was nonsensical, including in these exchanges:
[HIS HONOUR:] You said a minute ago, in an answer to a question from Mr Boncardo, that you had taken seniority into account?---Yes.
How could that be so, in the situation in which, on its face, that document shows that there are 12 other people who are less senior than Mr Hes?---Well, possible – it’s possible, your Honour, in – in the manner that we did the best we could to consider that, in context, as well as with – with being mindful of the evaluation. Look, it’s not a – it’s not a simple – I can’t give you a simple answer, your Honour. It’s not – not a simple thing to – to get through. The – the seniority situation in the – in the enterprise agreement simply makes reference to giving consideration to that, your Honour, and – and we absolutely consider that when – when evaluating. But, as the EA says, it’s consideration, it’s not mandate, and it is – it is my view that some of the employees that are less senior provide a better – better potential for the – the smaller group that we’re forwarding – forwarding – forging towards, just to the best of my ability to – to get the best group that I see and that me and management, or previous management, see going forward, your Honour. Admittedly, it’s a – it’s a – it’s a very difficult – a very difficult process, your Honour.
…
[MR PICHLER:] Once again, the employee skills and evaluation thing is a – is a fluid thing and a dynamic thing and it’s updated and changes, but - - -
But you said that in answer to a question – or something along those lines – in answer to a question that Mr Boncardo asked you, but there’s no suggestion in your affidavit that it was fluid. It was exactly as it appears - - -?---Yes, your Honour.
- - - in [Annexure A]. It’s to – wasn’t fluid at all. It was fixed, and because it was fixed and you relied on it, you’ve sworn that that’s why his position was made redundant?---Yes, your Honour.
(The entire passage is set out at [80] above.)
131 In his closing submissions, Mr Pichler for the first time came up with the contention that he did consider Mr Hes’s seniority, but only in relation to other “level four employees”. Given this suggestion was never previously made, and that Mr Pichler had never mentioned such a distinction in his affidavit, or during the course of being asked at length in cross-examination whether and how he took seniority into account, I reject it.
132 I am satisfied that MPC, through Mr Pichler, did not take Mr Hes’s seniority into account when deciding to dismiss him. In selecting Mr Hes for redundancy, MPC therefore failed to comply with the requirement in cl 19.4 that it observe the seniority of employees. A declaration will accordingly be made that MPC contravened s 50 of the FW Act.
Mr Pichler’s accessorial liability for MPC’s contraventions
133 Section 550 of the FW Act provides:
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
…
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
134 The applicants plead that Mr Pichler aided, abetted, counselled or procured MPC’s contraventions of ss 50 and 340, or that he was directly knowingly concerned in, or a party to, those contraventions.
135 The reverse onus under s 361 does not apply to alleged contraventions by accessories of s 340: see Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 at [332] (Wigney J).
136 As the applicants submitted, and Mr Pichler did not seek to gainsay, the so-called “physical elements” of the claim of accessorial liability against Mr Pichler are readily established:
(1) Mr Pichler was the person who dismissed Mr Hes, so he aided, abetted or procured the contravention. He took action to bring it about, such that there was a causal connection between his actions and the contravention.
(2) As to being “knowingly concerned”, Mr Pichler engaged in conduct that implicated or involved himself in the contraventions, such that there was a “practical connection” between Mr Pichler and the contraventions: see Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [178] (White J).
(3) Further, and obviously enough, in light of my findings above, Mr Pichler knew the reasons for the adverse action taken against Mr Hes were:
(a) because Mr Hes had a workplace right as an HSR;
(b) because Mr Hes had exercised a workplace right to make complaints to WorkSafe;
(c) in order to prevent Mr Hes from exercising a workplace right to make complaints to WorkSafe; and
(d) in order to prevent Mr Hes from exercising a workplace right by having the role or responsibility of HSR.
137 If it is necessary for the applicants to prove that Mr Pichler was aware of the terms and conditions prescribed by the Agreement at the time of MPC’s contraventions, I have no doubt that he was so aware. It is true that, during cross-examination, Mr Pichler claimed he was not familiar with the Agreement in March 2020, and that “the learning curve picked up thereafter”. I do not accept that evidence, in particular because it is inconsistent with several other statements that Mr Pichler made during cross-examination, which make it tolerably clear that Mr Pichler was well aware of the terms and conditions prescribed by the Agreement at the time of MPC’s contraventions. For example, Mr Pichler asserted that:
(1) at the time in February or early March 2020 when he “advise[d] employees of the appropriate times for meetings”, he did so “in accordance with the EA”;
(2) at the time he sent his 21 February 2020 notice to all employees, his objection to Messrs Hes and Rosenbrock’s behaviour was that they were “not following the appropriate processes in accordance with the Enterprise Agreement”;
(3) at the time he dismissed Mr Hes, he took seniority into account “in accordance with the EA”; and
(4) the reason he had taken advice from Workplace Wizards in the past was to “bring [him]self up to speed with the EA”.
In any event, as the applicants submitted, Mr Pichler did not plead to the allegation that he was aware of the terms of the Agreement, so the allegation, being one of material fact, is taken to be admitted: Federal Court Rules 2011 (Cth) r 16.07(2).
138 For those reasons, I find that Mr Pichler was involved in MPC’s contraventions of ss 50 and 340 of the FW Act.
139 Mr Pichler is therefore, by s 550(1) of the FW Act, taken to have himself contravened ss 50 and 340 of the FW Act.
Personal leave claim
140 It will be recalled that the applicants also plead that MPC contravened s 340 of the FW Act by dismissing Mr Hes for exercising his workplace right to take personal leave. The basis for this claim can be stated briefly:
(1) Mr Hes had a workplace right to take personal leave under cl 40 of the Agreement, which relevantly provides that employees “shall be entitled to paid Personal and/or Carer’s Leave when they are absent from work due to … [a] personal illness or injury …”
(2) Mr Hes gave unchallenged evidence that he exercised this right by taking personal leave on at least 20-21 and 25-28 February 2020.
(3) Mr Rust gave unchallenged evidence that, prior to Mr Hes’s dismissal, Mr Pichler expressed his disapproval of Mr Hes’s absence from work. Specifically, Mr Rust deposed that Mr Pichler said to him “tell [Mr Hes] – if he values his job he should be returning to work”.
141 While the personal leave claim received little substantive attention during the hearing, it was explicitly pleaded and the respondents did not adduce any evidence in response to it. Given MPC’s onus under s 361, the claim is made out.
142 The applicants do not press for a finding that Mr Pichler was involved in this contravention.
Disposition
143 Declaratory relief will be granted accordingly.
144 The proceeding will be relisted for a further hearing on the question of appropriate relief.
I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Callaghan. |
Annexure A
