WCRA/FWA: Crossroads of Personal Injury & Adverse Action claims for lost income

Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032

The quantum decision of Reeves J in the adverse action claim following Mr Haylett’s unlawful termination raised several issues with respect to lost future earnings which were part of the decision of Judge Baulch in Mr Haylett’s personal injuries claim Haylett v Hail Creek Coal Pty Ltd [2013] QDC 340.

Judge Baulch awarded Mr Haylett $500,000 for his future loss of earning capacity for an anticipated 23 – 25 years of working life. The award was cognisant that Mr Haylett had been retrained into another position, but was nevertheless a global allowance.

Mr Haylett continued working for Hail Creek Coal Pty Ltd after the District Court decision. However, Hail Creek Coal Pty Ltd sought to rely on a medical certificate under s.46 of the Coal Mining Safety and Health Act 1999 (Qld) and cease Mr Haylett’s employment.

Judicial review decisions ensued culminating in the Court of Appeal ruling in Mr Haylett’s favour. Nevertheless, Mr Haylett was subsequently terminated, and this was found to be unlawful.

Hail Creek Coal Pty Ltd argued that the award of lost earning capacity by Judge Baulch ought to be taken into account when calculating the loss of wages relating to the termination. However, Reeves J found that the award in the District Court was one based on a personal injury as opposed to compensation under s.545 of the  Fair Work Act 2009 (Cth) (FWA), which is directed to contraventions under the FWA, including unlawful termination.

Reeves J noted the distinction in the causes of action, the manner in which tax was differently dealt with, and applying a formula by reference to stated authorities and the likely life expectancy of Hail Creek Coal Mine of 13 years, allowed a loss based on a gross annual salary of $50,000.00.

Reeves J rejected that the actuarial discount award was 5% based on s.61 of the Civil Proceedings Act 2011 (Qld) (CPA), but rather applied the common law rate of 3% based on the definition in s.5 of the CPA, which defined court to mean Magistrate, District or Supreme Courts. Reeves J found s 79 of the Judiciary Act 1903 (Cth) did not pick up s.61 of the CPA.

Finally, a penalty of $50,000.00 was imposed for contraventions of the FWA.

David Cormack – Brisbane Barrister & Mediator


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