In this case a worker had been injured at work but his employer, on his return to work, provided him employment for less days than he was medically cleared for and made certain decisions about what work he could do. He was already receiving workers compensation and we assisted him to lodge a disability discrimination complaint to the Australian Human Rights Commission.
Section 151A of the Workers Compensation Act 1987 (NSW) provides that a person who receives damages in respect of an injury from their employer:
- ceases to be entitled to workers’ compensation from the employer;
- must deduct the amount of any weekly payments already received from their damages payment, and re-pay it to the employer; and
- ceases to be entitled to participate in any injury management program.
As such there may have been a risk in settling the discrimination complaint, in that our client could have lost his entitlement to workers compensation.
In our client’s matter it appeared that her disability discrimination claim could be easily distinguished from damages “in respect of an injury” within the meaning of the legislation, however careful drafting of the deed of release was still considered necessary. Specifically, the part of the agreement releasing the employer from any future claim by our client included wording to the effect that all claims under relevant workers compensation legislation and any work injuries claim were exempt from the deed of release relating to the discrimination matter.
This is an important point for people making discrimination complaints and their advocates to remember when settling a discrimination complaint where the person’s disability is associated with a workplace injury.
Further decisions relating to s 151A:
Adams v Fletcher International Exports Pty Ltd [2008] NSWCA 238 (2 October 2008)
Rail Corporation New South Wales v Hunt [2009] NSWWCCPD 114 (15 September 2009)
Barnett v Country Rugby League of NSW Inc [2010] NSWWCCPD 73 (12 July 2010)
