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By
Gaby Grammeno
Contributor
The case concerned a former Australian Federal Police officer who began to experience heart palpitations and other physical problems in April 2013. She worried that this indicated a recurrence of the thyroid cancer she’d recovered from about 10 years earlier.
Over the next couple of months, her symptoms deteriorated and she had various medical tests. Her condition did not improve and she began experiencing psychological issues, including constant anxiety attacks and depression. A psychologist diagnosed her as having severe depression and anxiety.
In March 2014 she lodged a workers comp claim for acute gastritis, adjustment disorder with mixed emotional features and panic disorder as a psychological injury.
She claimed that over the previous eight months, her superior had – intentionally or not – influenced others to exclude her, spread malicious rumours and created a hostile workplace. He had acted and spoken to her in a demeaning and degrading way and repeatedly made inappropriate comments about her body, especially her breasts.
He’d offered a reward to the first of her teammates to find out if her breasts were real or not, shown her explicit images on his phone and asked if she liked them, which she found thoroughly humiliating, particularly in the presence of other team members. While he was away he’d put a more junior officer in charge of her and told her to learn to obey the junior.
Comcare accepted her claim and provided compensation including weekly payments.
In August 2018 she lodged a complaint with the Australian Human Rights Commission alleging discrimination on the grounds of disability and her sex, and that she had been sexually harassed in the period from March 2013 until early 2014.
While some of her complaints to the AHRC had been included in her workers comp claim, she also made new allegations, including that her supervisor had rubbed himself against her in a sexual and inappropriate manner whenever he had the chance, making her feel uncomfortable and violated.
She also made new allegations against two more junior male officers in her team. She said one had spread malicious rumours, made fun of her, performed abusive or offensive acts in front or behind her and played practical jokes on her. He’d also excluded her from work-related meetings, functions and events, made vindictive comments about her ability as a police officer and had been generally hostile.
Another junior officer had refused to follow her directions or requests, made fun of her general duty experience and policing knowledge, played practical jokes and engaged in deliberate conduct causing her physical and social isolation. He’d also refused to acknowledge her seniority and made offensive comments about her in front of other team members.
The conduct of the three officers had made her feel humiliated, intimidated and offended. She noted they did not treat men in the same way, therefore their behaviour discriminated against her on the grounds of sex.
She’d also missed out on job opportunities she might have taken up had she not become so ill that by early 2014 she could not continue to work.
By the time she complained to the AHRC, she had spent time as an inpatient at a psychiatric clinic and attended day groups at the same clinic for the previous three years. Her employment was terminated on the grounds of invalidity in 2019.
To settle her complaint to the AHRC, she entered into a deed of release under which the AFP agreed to pay her a lump sum of $1,250,000.
Comcare then sought to recover $677,363.84 from her, a sum representing the value of the compensation she’d previously been paid. Comcare argued that part of the lump sum payment constituted damages within the meaning of section 48 ‘Compensation not payable where damages recovered’ of the Commonwealth Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
Section 48 aims to prevent ‘double dipping’ – if a worker is compensated for an injury then is later awarded damages for that injury, the employee must pay Comcare a sum equal to either the compensation previously paid, or the amount of damages, whichever is less.
The former police officer disputed that the sex discrimination settlement entitled Comcare to recover the statutory compensation. She was successful before the primary judge, who made a declaration in her favour.
Comcare subsequently appealed, and the issue to be decided by the court was whether the primary judge was correct in declaring that no part of the sum of $1,250,000 paid in settlement of the AHRC complaint constituted ‘damages or a recovery of damages’ within the meaning of s 48 of the SRC Act.
The appeal was heard in the Full Court of the Federal Court of Australia.
In court
Comcare argued that the definition of ‘damages’ in the SRC Act supported an interpretation of s 48 as encompassing ‘damages’ paid as compensation for discrimination under the relevant section of the Australian Human Rights Commission Act 1986 (AHRC Act).
Justices Rangiah, Wheelahan and Goodman disagreed, taking the view that ‘damages… in a case involving unlawful discrimination or sexual harassment can compensate a claimant for damage that goes well beyond any injury… that is compensable under the SRC Act or by an award of damages at common law’.
While injury is the subject matter of the cause of action in a workers compensation claim, ‘unlawful discrimination is different’, in that its foundation is not the injury but the discrimination, they said.
They concluded that the deed of release in settlement of the AHRC complaint related only to unlawful discrimination and sexual harassment, not to any common law claim in respect of a compensable injury. No part of the settlement was attributable to damages in respect of the injury for which she’d been compensated. This was much the same conclusion reached by the primary judge, who had therefore not erred.
The court dismissed the appeal and ordered Comcare to pay the former police officer’s costs, noting that accepting Comcare’s arguments ‘could have a chilling effect’ on the bringing of sex discrimination complaints and ‘undermine the objects of the discrimination legislation and the AHRC Act’.
What it means for employers
Employers have a positive obligation under the law to prevent sexual harassment and discriminatory conduct at work. If there is evidence of such conduct, employers should review their operations to determine the extent of sexual harassment and implement reforms to their training, policies and procedures to prevent or stop serious discrimination and harassment.
Read the judgment
