Stood down days after winning his injury claim

What happened

Mr Haylett was a mine worker at the Hail Creek coal mine in central Queensland, run by a company in the Rio Tinto Group. In mid-2009 he hurt his spine at work. After surgery he came back on light duties and retrained as a drill rig operator, a job the mine adjusted so that he could do it. He then worked as a drill rig operator for about three years.

On Friday, 15 November 2013 the District Court of Queensland awarded him about $637,000 in damages against the mine for the injury. The next Monday he had a routine five-yearly medical assessment under Queensland coal mining safety law. The doctor said he was unfit for his position, described on the form as "operator", and the mine manager stood him down from 19 November 2013.

Mr Haylett challenged the assessment in the Supreme Court of Queensland and won. Instead of taking him back, as his lawyers asked, the mine went back to the same doctor, who issued a new form finding him "fit for drill rig operation". Another mine employee then rang the doctor and persuaded him to issue a second version saying he was not fit. Mr Haylett won again in the Supreme Court, and again in the Court of Appeal in December 2015, which declared the favourable assessment valid. The mine still would not take him back. It had used up his sick leave and annual leave and, from March or April 2014, stopped paying him altogether.

The claim

His union, the CFMEU, sued in the Federal Court. Its main claim was under s 340 of the Fair Work Act 2009 (Cth), one of the general protections. It says an employer must not take adverse action against an employee because the employee has a workplace right or has exercised one. Adverse action includes injuring an employee in their employment or altering their position to their prejudice.

Two things were not in dispute: bringing the District Court damages claim was an exercise of a workplace right, and standing Mr Haylett down and stopping his pay were adverse action. The only question was why the mine had done it.

Why: the legal test

Under ss 360 and 361 of the Act, once adverse action is shown, the employer has to prove that the protected reason was not a substantial and operative reason for it. The court looks at what actually motivated the decision-maker at the time, judged on all the evidence.

The mine manager said his "primary and only" reason was that the coal mining safety regulations required it once Mr Haylett had an adverse assessment. Justice Reeves did not accept that. He found the manager "generally unsatisfactory as a witness" and evasive. The manager had not known Mr Haylett or what work he did, and did not ask anyone before standing him down. Under questioning he could not point to any part of the regulation that required what he did, saying it was "implicit". He was not a lawyer and did not say he had sought advice from anyone.

The judge also noted that, on the afternoon of the District Court award, a colleague had emailed the manager calling it "a significant payout" that might raise the mine's future insurance premiums. He found the safety rationale was "likely to have been a pretext for a hasty decision" to remove a worker seen as a future cost. The safety laws protect mine workers' health; they are not about an employer's operational needs.

The mine had not proved that the damages claim was not a substantial and operative reason, so it had breached s 340. The Court also found that Mr Haylett had stayed ready, willing and able to work as a drill rig operator, so stopping his salary breached the enterprise agreement and s 50 of the Act.

What happened next

Soon after the trial Mr Haylett gave up on returning to the mine and ended his employment by accepting that the mine had repudiated his contract. In a second judgment, delivered on 26 August 2016 ([2016] FCA 1032), Justice Reeves rejected the mine's argument that the District Court damages already covered his loss, because the two awards were for different things. He set the method for compensating his past and future lost wages up to the mine's expected closure in about 13 years, less 20% for life's uncertainties and allowing for $50,000 a year he could earn elsewhere. The parties then worked out the figures, and the final orders were made on 31 August 2016.

The judge ordered the mine to pay a penalty of $25,000 for each of its two contraventions, a total of $50,000, payable to the union. He found the mine manager's conduct "deliberate and undertaken without obtaining any advice", and the wrongdoing persisted for more than two years.

What this means for you

If you have made a workers' compensation claim or exercised another workplace right, and soon afterwards you are stood down, demoted or have your pay stopped, the general protections may apply. The employer has to explain its real reason, and a safety or legal reason that the decision-maker cannot explain may not survive scrutiny.

For employers, the lesson is in the timing and the process. Before standing a worker down on a legal ground, check what the law actually requires, record why, and revisit the decision when a court rules against you. Consider getting advice early, whichever side you are on.