A recent NSW Court of Appeal decision, Gardiner v Laing O'Rourke Australia Construction Pty Ltd [2020] NSWCA highlights again the importance of getting expert legal advice when settling claims that may impact on your workers compensation benefits.
Under the NSW Anti-Discrimination Act 1977, it is against the law to treat someone unfairly at work because of a characteristic they have, or are assumed to have, including:
· disability (includes diseases and illnesses)
· sex (includes pregnancy and breastfeeding)
· race
· age
· marital or domestic status
· homosexuality
· transgender status
· carer’s responsibilities.
Sometimes a worker who has been the victim of discrimination may have an entitlement to compensation under both the Anti-Discrimination Act and the Workers Compensation Act 1987.
This commonly occurs where the discrimination has resulted in the worker suffering a psychological injury.
A worker who settles a claim for damages under the Anti-Discrimination Act, risks losing their (probably more valuable) workers compensation benefits, if the settlement includes “damages in respect of an injury”. This is because a worker who receives damages for their injury has no further entitlement to workers compensation benefits (s 151A of the Workers Compensation Act).
In Gardiner, the worker had a pre-existing psychological condition which he alleged was aggravated by events occurring in the workplace which amounted to disability discrimination.
He lodged both a workers compensation claim and a claim for damages for the discrimination. The discrimination claim was settled by way of a deed and the workers compensation insurer denied liability relying on s 151A.
The worker was unsuccessful in the Workers Compensation Commission before an Arbitrator and on appeal to the Presidential member.
The Court of Appeal overturned the Commission’s determination finding, on the proper construction of the deed, the worker had not received “damages in respect of an injury”.
Interestingly, one of the three judges in the Court of Appeal went so far as to say the reference to “damages” in s 151A should properly be understood to mean “work injury damages” and should not be understood to cover payments under a separate statutory scheme which provides additional rights to those who might be the victims of unlawful discrimination.
However, the other two judges did not go that far and simply referred to the terms of the deed.
Care needs to be taken drafting a deed when settling a discrimination claim in these circumstances. A clause excluding workers compensation benefits from the settlement will not be effective if, looking at the issues resolved between the parties, it appears the worker received “damages for an injury”.
While it may be possible to overturn such a settlement if the statutory pre-conditions for claiming work injury damages were not met, that is not a satisfactory result when a properly drafted deed will allow the worker to retain both damages for the discrimination and workers compensation benefits.
Contact us for more information.
DISCLAIMER: This blog is made available by Mortimer Fox Lawyers to give you general information and a general understanding of the law, not to provide specific legal advice. Unless otherwise stated, all information provided pertains to injuries sustained in or in connection with New South Wales. By using this blog you understand that there is no solicitor client relationship between you and Mortimer Fox Lawyers. This blog should not be used as a substitute for legal advice. If you require legal advice please contact us for an appointment.
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