A workplace injury can lead to not only a workers compensation claim, but often claims of unfair dismissal or discrimination. The RMB Compensation division explains why care is required in these cases:
Unfortunately, once a work-place injury occurs, the relationship between employer and employee often breaks down leading to poor decision-making and termination of employment.
As a result, the aggrieved employee often pursues a claim for unfair dismissal or discrimination.
A workers compensation claim, and a claim in relation to the termination of the employment are able to be run at the same time. However, extreme care needs to be taken if an agreement is reached to settle the termination of employment case.
Under NSW workers compensation laws, if an injured worker receives damages – from anyone – it can end the injured persons workers compensation rights. That is, the injured persons entitlement to weekly benefits, medical expenses and lump sum compensation can be lost forever unless care is taken.
In a recent case of Gardiner v Laing O'Rourke Australia Construction Pty Ltd, Mr Gardiner brought a complaint against his employer immediately after the termination of his employment, alleging discrimination on the grounds of disability and victimisation.
The complaint was settled on the basis the employee was to be paid approximately $30,000 and legal costs. The settlement terms were set out in a Deed signed by both parties and payment was made.
However, prior to the settlement of the discrimination claim, Mr Gardiner had also lodged a claim for workers compensation.
The insurer denied the workers’ compensation claim and argued that, as Mr Gardiner had received damages for his discrimination claim in respect of the same injury, he was precluded from receiving workers compensation payments. Mr Gardiner challenged that decision.
He lost in the Workers Compensation Commission. However, the Court of Appeal overturned that decision and found that the payment of damages under the anti-discrimination process were not relevant to Mr Gardiner’s workers compensation rights.
The Court found that the statutory protections provided by the Anti-Discrimination Act formed a discrete and independent statutory scheme from the workers compensation scheme.
Accordingly, the Court held that recovery of damages pursuant to a complaint under the Anti-Discrimination Act will not stop Mr Gardiner from receiving workers compensation benefits
When an injured worker is looking to settle any form of claim they should seek expert legal advice on the terms of the settlement deed to ensure that they do not lose their workers compensation rights.
If you would like to speak to a lawyer who specialises in workers compensation, unfair dismissal or discrimination, please contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on ourwebsite.