Hail Creek remains “recalcitrant” on long-running injury claim

A long workplace injury battle with Rio Tinto has reached a new conclusion, with a Federal Court judge criticising Rio Tinto for its treatment of a former bulldozer operator and driller, and upholding a CFMEU adverse action claim.

Justice John Reeves said former Hail Creek employee Michael Haylett had demonstrated remarkable resilience, having been involved in a legal struggle with the company dating back to his initial spinal injury in 2009.

“This matter has a remarkable history of resilience on the part of Mr Haylett and what can only be described as recalcitrance on the part of Hail Creek Coal,” Justice Reeves said.

In 2014 Haylett was awarded $626,280 in damages for injuries sustained while operating a bulldozer at the Hail Creek coal mine during 2009-10.

Rio Tinto had formerly admitted fault for the injuries, which necessitated spinal surgery, and retrained Haylett for duties as a drill rig operator.

However, Rio Tinto stood down Haylett after he was awarded compensation, asserting that he didn’t hold a valid health assessment.

Haylett retained his position in August 2014 after challenging Rio Tinto in the Supreme Court, but a year later Rio Tinto requested a second health assessment.

The judge said Hail Creek had “prevailed upon” a doctor to change his medical assessment of Haylett to state he was unfit for work, when they were dissatisfied with the outcome of his examination which said he was fit for duties.

Based on that revised assessment, Hail Creek stood down Haylett without wages in September 2014.

“Notwithstanding Mr Haylett’s total success before the Queensland Court of Appeal, in the three months (approximately) since it’s judgement, Hail Creek Coal has still refused to reverse its earlier decisions to stand him down and cease paying his wages,” Justice Reeves said.

It was found that Hail Creek Coal had acted in contravention of s351 of the Fair Work Act by failing to provide Haylett with work or wages.

In addition, by taking adverse action against Haylett, Rio Tinto breached s340 of the Fair Work Act, and also contravened s50 by breaching the provisions of their own enterprise agreement, the Hail Creek Agreement 2011.

Under that agreement Haylett was entitled to a base operator’s salary of $60,000 per annum.

It is understood that Hail Creek Coal has already lodged a notice of appeal on March 18, however the appeal will not be heard until Justice Reeves makes penalty, compensation and costs orders.

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