Massive compensation for adverse action
The Federal Court of Australia has awarded a worker $1.3 M in compensation plus interest (and ordered the employer to pay a civil penalty of $50,000 to his union) for adverse action for exercising a workplace after the employer stood him down several days after the worker obtained an award of damages against the employer for a back injury sustained at work. The judge decided that the employer had failed to overcome the reverse onus of proof placed upon defendants by the Fair Work Act.
The case is interesting not just for its analysis of the general protections, but also for the judge’s summary of the way in which compensation in such cases is to be calculated,
“In Maritime Union of Australia v Fair Work Ombudsman  FCAFC 120 (MUA), the Full Court described the exercise that has to be undertaken in assessing an award of compensation under s 545(2), as follows (at ):
The task of the primary judge, having found the relevant contraventions, was to assess the compensation, if any, that was causally related to those contraventions. That involved not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions). Subject to any statutory requirement to the contrary, questions of the future or hypothetical effects of a wrong in determining compensation or damages are not to be decided on the balance of probability that they would or would not have happened. Rather, the assessment is by way of the degree of probability of the effects – the probabilities and the possibilities: Malec v JC Hutton Pty Ltd  HCA 20; 169 CLR 625 at 642-643; Sellars v Adelaide Petroleum NL  HCA 4; 179 CLR 332 at 352-356. The above proposition must be qualified by the recognition that, where the fact of injury or loss is part of the cause of action or wrong, it must be proved on the balance of probability. Compensation is generally awarded for loss or damage actually caused or incurred, not potential or likely damage: Tabet v Gett  HCA 12; 240 CLR 537; Sellars at 348; Wardley Australia Ltd v Western Australia  HCA 55; 175 CLR 514 at 526; that is equally so here under s.807(1)(b) and s.545(2)(b).
Insofar as future or hypothetical events are concerned, in Sellars v Adelaide Petroleum NL  HCA 4; (1994) 179 CLR 332 (Sellars) at 355, the High Court described how loss or damage was to be assessed, in the following terms:
… Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant’s case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.
(Emphasis in original)
By its very nature, the calculation of future loss can only be a rough estimate. It cannot be undertaken with mathematical precision. The object is to arrive at an estimate which is “most likely to provide fair and reasonable compensation”: see Todorovic v Waller  HCA 72; (1981) 150 CLR 402 (Todorovic) at 413 per Gibbs CJ and Wilson J and also Gill v Australian Wheat Board  2 NSWLR 795 at 807 per Rogers J.”
CFMEU v Hail Creek Coal Pty Ltd  FCA 1032 delivered 26 August 2016 per Reeves J