An Adverse Action Claim lodged on behalf of a drill rig operator who was wrongfully stood down from his employment, has led to Hail Creek Coal Pty Ltd (“HCC”) being ordered by the Federal Court of Australia to pay almost $1.3 million in compensation to the worker. HCC were also ordered to pay a $50,000.00 penalty to CFMEU who brought the claim on behalf of the worker.
What is an Adverse Action Claim?
The Fair Work Act 2009 prohibits a person (including an employer) from taking adverse action against another person (including an employee) because that person:-
- Has a workplace right (including entitlements under Workplace Awards and Agreements);
- Has or has not used a workplace right;
- Proposes to, or proposes not to, use a workplace right;
- Does or does not belong to a trade union;
- Engages or does not engage in industrial activity.
Adverse Action includes acting, organising or threatening to:-
- Dismiss or refuse to employ a person;
- Discriminate against a person;
- Injure a person in their employment;
- Alter an employee’s positon to the employee’s disadvantage;
- Taking action against an employee because they are engaging in a lawful industrial activity.
In this case, the Adverse Action Claim concerned allegations that HCC had stood a drill rig operator named Michael Haylett down from his employment because he had made a claim against the employer for damages arising from a significant spinal injury sustained in the course of his employment with HCC as a bulldozer operator.
In defending the Adverse Action Claim, the onus of proof was on HCC to prove that the reason or reasons for standing Mr Haylett down from his employment was not because of the earlier workers compensation claim. In defending the claim, HCC’s Mine Manager gave evidence that HCC had a genuine concern for its obligations under the regulations and stood Mr Haylett down because he was unfit to undertake his duties as an operator. The Court did not accept the evidence of HCC witness and instead found that the employer was more likely to have stood down Mr Haylett because of the risk of potential future costs with respect to insurance premiums.
The Court’s decision is the subject of an appeal by HCC however if the decision is upheld, the payout ordered by the Court will remain the highest amount awarded following an employer’s breach of the Fair Work Act 2009.
For more advice on the area of Workplace Rights and Adverse Action Claims, contact Steven Hayles.
