Intersection of discrimination and workers compensation law

Have you been sexually harassed at work and also have a workers’ compensation claim arising from the same conduct? What happens if you settle your discrimination claim? Do you have to repay the money you have received as part of your workers’ compensation claim? These questions were recently answered in a court case.

The Full Court of the Federal Court of Australia considered these issues in Comcare v Friend [2024] FCAFC 4. The short facts were that Ms Friend was receiving workers’ compensation benefits arising from being exposed to harassment and bullying from her supervisor. She subsequently lodged a complaint with the Australian Human Rights Commission that she had been sexually harassed at work. She settled that complaint by way of a deed of release. The insurer then sought to recover the workers’ compensation payments from Ms Friend.

The Court, in determining that Ms Friend was entitled to keep her workers’ compensation payments, carefully considered the terms of the deed of release and whether there was any ‘double-dipping’ i.e. receiving compensation twice for the same wrong done to her. In this case, under the deed of release, the payments were determined by the Court to be for the unlawful discrimination.

The key takeaway point from the decision is that in negotiating a deed of release you should seek the advice of a lawyer to ensure that in settling a discrimination claim you do not affect your workers’ compensation entitlements. McNallys can provide you with such advice.