In CFMEU v Hail Creek Coal Pty Ltd  FCA 1032, an employee was awarded almost $1.3 million for his employer’s repeated wrongful actions against him. The employee, Mr Haylett, was referred to by the trial judge as having “a remarkable history of resilience” in successfully arguing an adverse action claim against his employer, Hail Creek Coal. Under section 340 of the Fair Work Act, an employer must not take adverse action against an employee who has exercised a workplace right.
The Spinal Injury
In mid-2009, Mr Haylett suffered a spinal injury at work. After undergoing surgery for that injury, he could not continue in his current role. However, he eventually returned to work for Hail Creek Coal by retraining himself as a Drill Rig Operator. He continued to work as a Drill Rig Operator for Hail Creek Coal for the next 3 years.
The Workplace Right and the Adverse Action
Mr Haylett made a claim against his employer for his spinal injury, and, in late 2013, he was awarded damages in the District Court of Queensland in excess of $600,000. Shortly after, he was ordered to undergo a medical assessment, which resulted in a certificate that he was unfit to work due to the possible aggravation of his injuries. His employer, via his Mine Manager, immediately stood him down.
Mr Haylett’s right to take legal action for his spinal injury was a “workplace right” under the Fair Work Act. Hail Creek Coal’s decision to stand him down was “adverse action”. The question was whether that adverse action was taken because Mr Haylett exercised his workplace right.
Repeated Invalid Medical Assessments
The Mine Manager argued that his only reason for standing Mr Haylett down was that it was required by the Coal Mining Safety and Health Regulation (Qld) (“Regulations”). Mr Haylett then challenged the medical assessment in the Queensland Supreme Court. He was awarded with a ruling that the medical assessment was not a valid one for the Regulations.
After the Supreme Court ruled in Mr Haylett’s favour, Hail Creek Coal’s own lawyers recommended reversing the decision to stand Mr Haylett down. However, Hail Creek Coal went against their own lawyers’ advice and, instead, ordered a new medical assessment. That second medical assessment found that Mr Haylett could indeed work as a Drill Rig Operator, just not in other capacities.
After hearing of this second medical assessment being in Mr Haylett’s favour, Hail Creek Coal remarkably ordered the doctor to amend the assessment to be to the detriment of Mr Haylett. Mr Haylett, again, applied to the Supreme Court, and he was, again, successful in having the medical assessment found invalid.
The Mine Manager’s Evidence
The trial judge found the evidence of the Mine Manager who stood Mr Haylett down to be incredibly unreliable. He was evasive in answering questions and was biased, deliberately forgetting anything that was in Mr Haylett’s favour. In particular, he claimed that he made the decision to stand Mr Haylett down because he had a genuine concern about Hail Creek Coal’s obligations under the Regulations. However, it was found under cross-examination that he did not actually understand the Regulations, nor could he point to any particular provision that required Mr Haylett to be stood down. Further, the Mine Manager did not even obtain any advice from lawyers or anyone else as to the Regulations.
The Court’s Decision
The judge, therefore, found that it could not have been that the primary and only reason for the decision to stand Mr Haylett down was a concern for the Regulations. Hail Creek Coal took adverse action against Mr Haylett because he exercised a workplace right, and this was a contravention of section 340 of the Fair Work Act.
The Moral of the Story
Hail Creek Coal could have avoided the $1.3 million payout if they had simply followed their lawyers’ advice to reverse the decision to stand Mr Haylett down. The Mine Manager could have avoided the criticisms levelled against him in court if he had simply sought legal advice as to the Regulations. The moral of the story is that employers and employees need to act in good faith with other employees by following the proper processes, and this may require seeking advice from others.
If you have a situation similar to this example, feel free to discuss your concerns, on a confidential basis, with one of our general protections claims lawyers.