The Federal Court of Australia recently awarded an employee damages of $1,272,109 for past and future loss of wages: seeCFMEU v Hail Creek Coal Pty Ltd  FCA 199 and  FCA 1032. This award under the adverse action provisions of the Fair Work Act was made despite the District Court having previously awarded substantial common law damages for the employee’s work related injury.
This decision is relevant for employers because it shows that:
Mr Haylett, an employee of the Hail Creek Coal Pty Ltd (HCC), sustained a work related back injury in 2009. He returned to work in a modified role and worked in that role for about 3 years.
On 15 November 2013, the District Court awarded Mr Haylett approximately $637,000 in common law damages for his injury. On 18 November 2013, Mr Haylett undertook a prearranged medical assessment under the Coal Mining Safety and Health Act 1999. He was assessed as unfit to undertake the duties of his unmodified role. Mr Priestly, HCC’s mine manager, decided to suspend Mr Haylett from employment when he received the results of the medical assessment. Despite Mr Haylett’s successful challenge of the validity of the medical assessment, Mr Haylett was not reinstated to his role.
The CFMEU, on behalf of Mr Haylett, brought a number of claims against HCC including that HCC had contravened section 340 of the Fair Work Act (FW Act) by failing to pay Mr Haylett wages because he had exercised a number of workplace rights, including by commencing the District Court proceedings for common law damages.
Justice Reeves found that the reasons that motivated Mr Priestly to stand down Mr Haylett included, as a substantial and operative reason, the fact that Mr Priestly had exercised a workplace right. Reeves J found that:
Reeves J awarded Mr Haylett damages of $1,272,109 for past and future loss of wages.
In making the award, Reeves J considered the interaction between the common law damages award and the award for breach of the FW Act. Reeves J held that those awards had different purposes as:
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