KEY POINTS

  • Employers must ensure that any instructions provided to a medical practitioner for the purposes of an employee assessment relate to the inherent requirements of the employee’s current position.
  • Employers should seek legal advice to ensure that they understand the exact nature of their legislative obligations before making decisions that purport to rely on that legislation.

​Background

The decision of Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd1 involved a dispute between the Construction, Forestry, Mining and Energy Union (CFMEU) on behalf of Mr Michael Haylett (Haylett), and his employer, Hail Creek Coal Pty Ltd (HCC), a subsidiary of Rio Tinto.

As a consequence of operating a bulldozer over an extended period of time, Haylett suffered a spinal injury which required significant surgical intervention and rendered him unable to work from mid- 2009. The injury also necessitated a permanent change to Haylett's duties, such that he was retrained as a drill rig operator on his eventual return to work in October 2010. He continued to work in that role until late 2013.

On 15 November 2013, the District Court of Queensland awarded Haylett approximately $630,000 in damages, predominantly in respect of future economic loss, as a consequence of his spinal injury.

On 18 November 2013, Haylett underwent a five-yearly medical assessment as required by the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act). The assessing doctor completed a form prescribed by the Coal Mining Safety and Health Regulations 2001 (Qld) (Regulations). The form indicated that Haylett was not fit to continue in his current position of an "operator" because of the "significant and foreseeable risk of further injury or aggravation of a medical condition which prevents him from performing the occupational demands of the role".

The following day, HCC stood Haylett down on the basis that he no longer had a current health assessment under the Regulations and was not entitled to participate in work at a coal mine. That decision was taken by Mr Michael Priestly (Priestly), a manager at HCC.

Legal action

In April 2014, HCC ceased paying Haylett's wages, Haylett issued proceedings in the Queensland Supreme Court seeking to challenge the validity of the medical assessment on the grounds that it found him unfit for work because it was focused on the prospect that he would become unfit to fulfil the requirements of his position at a later stage, rather than whether he could presently do the work of a drill rig operator. The Queensland Supreme Court upheld Haylett's argument and issued a declaration that the medical assessment was of no effect.

However, rather than permitting Haylett to return to work, HCC arranged for him to undergo a further assessment, with the same doctor. On 23 September 2014, the doctor issued a report which stated that Haylett was capable of performing his role, subject to a number of restrictions which related to the operation of vehicles as required by his former role, but not his present position of a drill rig operator.

Apparently dissatisfied with the outcome, HCC asked the assessing doctor to reconsider his assessment which referred to Haylett's capacity to perform the position of a "drill rig operator" and not the more general role of "operator". HCC argued that there was no specific position as a "drill rig operator" and that "operators" had to use various types of heavy machinery.

The doctor's further medical assessment on 30 September 2014 listed the same restrictions as on 23 September 2014, but concluded that Haylett was not fit to undertake the duties associated with the position of "operator". HCC therefore stood by its earlier decision to stand Haylett down and not pay him wages.

Haylett again challenged the assessment of 30 September 2014 and was successful, with the Queensland Supreme Court determining that it was not valid under the Regulations. HCC appealed the finding to the Queensland Court of Appeal and Haylett cross-appealed by seeking a declaration that the assessment of 23 September 2014, which stated that he was capable of performing his role of "drill rig operator", was valid.

Haylett was again successful in the Court of Appeal, which upheld the validity of the 23 September 2014 assessment while dismissing HCC's claim. However, HCC did not overturn its decision to stand Haylett down without pay which led the CFMEU, on Haylett's behalf, to lodge a claim under the Fair Work Act 2009 (Cth) (FW Act) that HCC had taken "adverse action" against Haylett by standing him down from his employment because he had exercised his workplace right to commence legal proceedings regarding the medical assessment.

Facts and findings

Under the FW Act, an employer must not take adverse action against an employee because they have a "workplace right", exercised a "workplace right", or proposed to exercise a "workplace right". As a concept, "workplace right" is broadly defined and includes taking legal action.

With specific reference to this aspect of Haylett's claim, the FW Act provides that an employer must not take "adverse action" against an employee, including by:

  • injuring an employee in his or her employment (section 342(1)(b));
  • altering the position of the employee to the employee's prejudice (section 342(1) (c)); and
  • discriminating between the employee and other employees of the employer (section 342(1)(d)).

In standing Haylett down, HCC had engaged in each of these types of adverse action. Accordingly, the Federal Court was required to determine whether it did so for a prohibited reason.

HCC responded to the adverse action claim by asserting that it was obliged to stand Haylett down on 19 November 2013 because of the medical assessment. Specifically, HCC argued that its occupational health and safety requirements under the CMSH Act and the Regulations were, in light of the assessment, the reason for the stand down. According to the evidence of HCC Manager Priestly, this was the "primary and only reason" for the decision to stand Haylett down, and not because Haylett had exercised a workplace right to commence legal proceedings against the company.

However, in the course of the hearing, evidence emerged that another HCC manager, Lawler, had sent an email to Priestly, where he made the observation that the "payout" to Haylett resulting from the judgment of the District Court of 15 November 2013 was "significant" and would have adverse implications for HCC's future insurance premiums. On this basis, his Honour Justice Reeves determined that Priestly's decision to remove Haylett was not borne out of any "genuine concern" about HCC's obligations under the Regulations, but because Lawler's email said that Haylett "posed a possible future cost risk" to HCC's operations, specifically with respect to its future insurance premiums.

Priestly continued to maintain the position that was put by HCC, being that the stand down was necessary to comply with the CMSH Act and the Regulations. However, his Honour described Mr Priestly's knowledge of the CMSH Act and Regulations as "rudimentary… at best" and noted he had not sought any advice about their terms. Accordingly, Justice Reeves determined that HCC had failed to discharge the onus of establishing that its decision to stand Haylett down on 19 November 2013 was not "substantially and operatively affected by a prohibited reason", being Haylett's pursuit of a common law damages claim against HCC in the District Court of Queensland.

It should be noted that, at the time of writing, HCC has lodged an appeal against the Federal Court's decision. The appeal will not be heard until Justice Reeves has made orders in relation to penalty, compensation, and costs.

Bottom line for employers

The decision serves as a useful reminder for employers to ensure that medical practitioners are informed, from the outset, that an employee's assessment should relate to the inherent requirements of the employee's current position.

It also highlights the need for employers to seek legal advice before making decisions that rely on legislation to ensure that they understand the exact nature of their obligations under that legislation, particularly where doing so may have a detrimental effect on their employees.