Perry and Australian Postal Commission
[2004] AATA 873
•20 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 873
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/371
GENERAL ADMINISTRATIVE DIVISION )
Re PATRICIA PERRY Applicant
And
AUSTRALIAN POSTAL COMMISSION
Respondent
DECISION ON PRELIMINARY ISSUE
Tribunal Ms M Carstairs, Member Date20 August 2004
PlaceBrisbane
Decision The applicant’s claim for compensation is not precluded under s48(4) of the Safety Rehabilitation and Compensation Act 1988 by the settlement of her complaint lodged with the Human Rights and Equal Opportunity Commission on 6 March 2003.
...................[Sgd]......................
M Carstairs
Member
CATCHWORDS
WORKERS’ COMPENSATION – entitlement – claim for compensation for workplace stress - whether claim precluded by section 48(4) of the Safety Rehabilitation and Compensation Act 1988 on basis that applicant has received damages for the same injury – applicant complained to HREOC of discrimination - excluded from penalty shifts upon return to work after an injury to her foot – HREOC complaint settled for $1000 – HREOC complaint referred to the applicant’s perceived treatment in the workplace as a result of her disability arising from her foot condition - this disability separate and distinct from the injury that she claims in the compensation claim – compensation claim is not precluded by section 48(4)
Safety Rehabilitation and Compensation Act 1988 s4, 48
Human Rights and Equal Employment Opportunity Commission Act 1986 s46PH(1)
Disability Discrimination Act 1992 s5, 12(5), 15
Lees v Comcare (1999) 56 ALD 84
Re Frank and Comcare (1996) 41 ALD 597
Telstra Corporation v Barrow (1994) 19 AAR 523REASONS FOR DECISION ON PRELIMINARY ISSUE
20 August 2004 Ms M Carstairs, Member 1. This is a preliminary issue in an application by Patricia Perry (the applicant) lodged with this Tribunal on 24 April 2003. The applicant seeks review of a decision denying her compensation in relation to a claim she made for work related stress occurring in 2002 after she returned to work following surgery for a non-work-related foot condition. The respondent now raises the issue that she is prevented from seeking compensation by s48 of the Safety Rehabilitation and Compensation Act 1988 (the Act) which is a provision that may rule out a claim where damages are received for the same injury.
2. At the hearing the applicant was represented by Mr J Plettell, union delegate with the Communication Electrical Plumbing Union – Post and Telecommunications Branch. The respondent was represented by Mr C Clark of counsel, instructed by Sparke Helmore solicitors.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act1975 (numbered T1-T25) as well as exhibits marked A1-A6 for the applicant and R1-R6 for the respondent.
BACKGROUND
4. The applicant is aged fifty eight. She works at the Northgate Mail Centre and has been employed by the respondent since 1993. She has had several operations to her foot, and on the last occasion in 2002 she was placed on restricted duties prior to the surgery and took sick leave for some two months for the surgery and recovery time. When she returned to work on 19 November 2002, the applicant was allocated to a work roster without penalty rates. The applicant commenced negotiations with the respondent, assisted by the union, in an attempt to resolve the issue, because she believed that other workers on restricted duties were not prevented from working shifts that attracted paid penalty rates. Her concerns were internally investigated and the respondent’s delegate completed a report on 21 January 2003 (T20), which included recommendations that the applicant be provided with safety shoes and an outline for her future access to penalty rated shifts.
5. On 26 December 2002, the applicant completed a claim for “work related stress” (T13) (the “compensation claim”) and stated that she first noticed her illness on 22 November 2002, culminating on 20 December 2002. She attached a medical certificate dated 20 December 2002 (T12), from Dr M Bokarier, general practitioner, who said that the applicant was suffering from “work related stress” which she had attributed to perceived discrimination.
6. On 3 January 2003 (T18), the applicant’s claim for compensation for work related stress was refused on the basis of legislative provisions excluding compensation for injuries resulting from a person being unable to obtain a benefit in connection with employment. That decision was affirmed on review on 4 April 2003 (T31). The benefit identified in the decision was that the applicant had missed out on obtaining her preferred shifts, where penalty rates were paid.
7. On 6 March 2003 (exhibit R5), the applicant lodged a complaint with the Human Rights and Equal Opportunity Commission (“HREOC”) (the “HREOC complaint”). HREOC convened a conciliation conference during which settlement was discussed but not achieved and discussions continued in ensuing weeks. The applicant and respondent settled the HREOC complaint for $1000 stated as being in full and final settlement, on terms that denied admission of liability but agreed that the settlement discharged and indemnified the parties from any further actions, claims, demands or proceedings regarding the matter.
8. The preliminary issue for the Tribunal is whether this settlement brings the applicant within the exclusionary provisions of s48(4) of the Act which provides that:
Compensation is not payable under this Act to the employee in respect of the injury, loss or damage…after the date on which…damages were recovered by the employee…
The preliminary issue requires a consideration of the nature of the applicant’s compensation claim and HREOC complaint, and whether the applicant recovered damages by settling the HREOC complaint.
EVIDENCE
9. In her written HREOC complaint (exhibit R5), the applicant ticked the box I have been discriminated against because I have a disability and added, in her own writing, “impairment”. In regard to what she wished to achieve by making her complaint the applicant set out the following:
§I would like an apology from Mary-Anne Scott (Human Resources Manager, Australia Post) and an assurance that this sort of treatment will not happen again
§At a meeting with Mary-Anne Scott I was told that all restricted duty people were going to be assessed…To date...this has not happened. I agreed to do the 8:24am non-penalty shift for this reason and also for fear of losing my job…I would like to be compensated for my penalties for the period 2nd December 2002 and also from 28 January 2003 till all persons with medical conditions have been assessed
§I would like to be supplied with more than one pair of specially made safety shoes as this has been the case previously with other mail officers who have non work related foot conditions.
10. In a written statement dated 21 May 2004 (exhibit A1), the applicant said that she attended a HREOC conciliation conference on 27 October 2003 with two representatives from Australia Post, Mr B Barclay, Manager Workplace Services, and Ms K Clarke. The applicant stated that she saw the issues in the HREOC complaint as including being singled out and discriminated against; payment of foregone penalties; and the provision of a second pair of safety shoes. She stated that she eventually accepted an ex-gratia payment for pain and suffering. The applicant said that she had asked Mr Barclay several times whether the acceptance of the settlement would affect her compensation claim and she said she was told that it would not, as the compensation was a separate issue. In her oral evidence she acknowledged that she did not recall the exact words used by Mr Barclay and said that she was not able to say definitely that Mr Barclay used the words pain and suffering with reference to the settlement.
11. In a written statement dated 21 May 2004 (exhibit A2), Mr Plettell said at the conciliation conference Mr Barclay agreed to the provision of extra safety shoes to the applicant and the parties discussed the monetary figure that would satisfy the applicant’s complaint, though this did not settle at the conference. He said that he and the applicant asked Mr Barclay about possible effects on the applicant’s compensation claim. Mr Plettell stated that Mr Barclay said that the ex gratia payment was not to compensate for loss of wages or income caused by the medical condition which was the subject of the compensation claim. Mr Plettell stated that Mr Barclay had said that the settlement amount was for pain and suffering, and for the distress the applicant was put under.
12. In oral evidence Mr Plettell said that he had acted previously as an advocate in compensation matters however this was his first time assisting in a HREOC complaint. He said that the main objective was publicity about the issue rather than monetary compensation. He agreed under cross-examination that the applicant had been distressed by the issues, though he disagreed that the settlement was related to that stress.
13. In a written statement dated 28 May 2004 (exhibit R1), Mr Barclay stated that when the applicant asked him at the conciliation conference about her compensation matter he answered her in generic terms and used words to the following effect “An employer cannot contract out of its compensation and rehabilitation obligations under the SRC Act” and “This action is quite separate from any compensation claim you might have”. Mr Barclay denied under cross-examination that he had knowledge of the applicant’s compensation case.
14. In oral evidence Mr Barclay said that the claim for payment of penalties was discussed at the conciliation conference and he had explained the reasons why payment legally was barred to her. Mr Barclay said that he knew that the applicant was upset and felt aggrieved by her treatment by Australia Post. Mr Barclay denied Mr Plettell’s assertion (exhibit A2) that he (Mr Barclay) had described the settlement as made for “pain and suffering” and said it was a payment, as described in his letter to HREOC dated 4 November 2003 (exhibit R3), based upon the ongoing nature of our relationship with Ms Perry and the need to maintain that relationship. Mr Barclay said he did not use the words “pain and suffering” when speaking of the settlement though he recalled that those words had been used by the applicant in a private session at the conciliation conference. He said that he used the term “ex gratia” in discussions about the proposed settlement as that term reflected the aspect of furthering working relations and because there were more favourable taxation implications arising from an ex gratia payment.
CONSIDERATION OF THE ISSUES
15. Part IV of the Act provides for liabilities that arise apart from the Act. Section 48 provides as follows;
(1) This section applies where:
(a) an employee recovers damages in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee, being an injury, loss or damage in respect of which compensation is payable under this Act…
16. As set out above, s48(4) then provides that compensation is not payable for loss or damage in respect of injury after the date on which damages were recovered.
17. As set out by the Full Federal Court in Lees v Comcare (1999) 56 ALD 84, s14 of the Act is the central provision for liability to pay compensation. It creates the liability, subject to other provisions of the Act, to pay compensation in respect of injuries. Section 4 of the Act provides the following definition of injury:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of … failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment…
18. Disease is defined as any ailment or aggravation of an ailment contributed to in a material degree by employment. Not every affront or loss that a person may suffer in connection with employment is an injury. In the present case, two delegates have determined that the applicant’s claim should be rejected as she is excluded from the definition of injury under the Act because her condition is attributable to her failure to obtain a benefit. That matter can be left to the substantive hearing, and no submissions were made in regard to it, but it is noteworthy that the respondent asserts that the applicant’s condition is excluded as injury under the Act for one purpose but not for another.
19. Section 4 of the Act provides the following definition of damages:
damages includes any amount paid under a compromise or settlement of a claim for damages, whether or not legal proceedings have been instituted, but does not include an amount paid in respect of costs incurred in connection with legal proceedings….
20. Mr Clark submitted that s48(4) precludes entitlement under the Act. He said that the applicant’s completed compensation claim form made clear that she identified “work related stress” as the injury, arising after discussions with Mary Anne Scott. He referred to the applicant’s statements that she believed that her injury was contributed to by being singled out and discriminated against by Ms Scott. Mr Clark submitted that the HREOC complaint was focussed on identical issues. He noted that paragraph 3.1 of the applicant’s Statement of Facts and Contentions reiterated that the HREOC settlement was for distress, pain and suffering and said that the Tribunal should find that the HREOC complaint was substantially about workplace stress and was identical to the compensation claim. He said that the Tribunal need not find double dipping for s48(4) to apply. Mr Clark referred the Tribunal to Re Frank and Comcare (1996) 41 ALD 597 and other Tribunal and Federal Court cases.
21. Mr Clark said that damages in the Act had an extended meaning and encompassed the HREOC settlement. He noted that s46PO(4) of the Human Rights and Equal Employment Opportunity Commission Act 1986 (the HREOC Act) provides that orders for damages may be made where discrimination matters are taken to the Courts.
22. Mr Plettell submitted that the compensation claim and the HREOC complaint were separate and that the HREOC complaint did not deal with the period of time that the applicant was on stress leave in relation to the compensation claim. He submitted that there was no double dipping. He also referred to Mr Barclay’s evidence that the settlement was not made for “pain and suffering” but to further the working relationship.
23. The Tribunal reached a decision on the preliminary issue after taking into account the oral and written evidence and submissions. Section 48(1)(a) requires that the injury for which the person has received “damages” is an injury in respect of which compensation is payable under the Act. Section 48(4) picks up the criteria in s48(1). For the s48(4) preclusion to operate, it is necessary that several matters be satisfied: that a person has recovered “damages”; that the damages be “in respect of an injury to the employee for which compensation is payable under the Act”; and that there be identity between the injury in respect of which the damages have been recovered and the injury which is otherwise compensable under the Act: Telstra Corporation v Barrow (1994) 19 AAR 523.
24. Much of the evidence before this Tribunal concerned the discussions at the conciliation conference and the settlement that followed. The Tribunal notes that neither the applicant nor the respondent was legally represented at the conciliation conference and therefore not too much store should be placed on their use of terms such as “ex gratia” and “pain and suffering” in the course of their negotiations. The Tribunal also took into account that communications notoriously can be misunderstood. Nevertheless there is considerable common ground between the evidence of the applicant, Mr Plettell, and Mr Barclay concerning the content of the discussions at the conciliation conference. But those discussions to settle the matter are not the starting point for the consideration of the issues to be decided by this Tribunal. It is firstly necessary to characterise the compensation claim and HREOC complaint.
25. The Tribunal accepts the respondent’s submission that there is a common background of facts between the HREOC complaint and the compensation claim that makes the consideration of the issue more difficult. Nevertheless s48(1) of the Act requires that the injury be one in respect of which compensation is payable under this Act. When the HREOC complaint and the compensation claim are examined in the context of all the written material and the oral evidence, it is clear that the required identity between the two is absent. To come within the provisions of the Disability Discrimination Act1992 (the DD Act) the applicant had to satisfy s5 of the DD Act, which covers the circumstances where a person is discriminated against on the ground of disability and is treated less favourably than others without disability. Section 15 of the DD Act prohibits discrimination in employment and s12(5) extends s15 to Commonwealth employees. Part 4 of the DD Act refers to the functions of HREOC in relation to complaints: Note to s67 of the DD Act. The HREOC complaint was concerned with the applicant’s perceptions of discriminatory treatment in relation to her foot condition, which she never claimed was work-related.
26. The applicant’s compensation claim related to stress arising from her perceived treatment in the workplace. This was clearly separate from the concerns that she had as a person with a foot disability in her workplace, where she held the belief that she was being treated in a manner different from that accorded to persons without disability, and to others in her workplace with the same disability as she had. The distinction between the compensation claim and the HREOC complaint is reflected in the remedies she sought in regard to the HREOC complaint: she wanted an apology and the discriminatory conduct to cease; she wanted a second pair of safety shoes; and she wanted penalty rates paid to her (for a period that was not covered by her compensation claim). It was clear from a letter sent by HREOC to the respondent (exhibit R5) that HREOC considered that the applicant had an arguable case.
27. The Tribunal was satisfied that the HREOC complaint referred to the applicant’s perceived treatment in the workplace as a result of disability arising from her foot condition, and that this disability was separate and distinct from the injury that she claimed in the compensation claim: Re Frank and Comcare (1996) 41 ALD 597. The HREOC claim was not a claim for stress, even though it could fairly be said that the issues raised in relation to the alleged discriminatory treatment stressed or distressed her.
28. In these circumstances s48(1) of the Act is not satisfied as the settlement was not in respect of an injury…being an injury…in respect of which compensation is payable under this Act.
29. This disposes of the preliminary issue, without the need to deal with the question of whether the $1000 HREOC settlement is properly to be classed as damages. Despite the wide definition of damages, it is likely that the Act contemplated a payment in discharge of a legal right rather than merely a payment for hurt feelings or some other kind of making-good. This interpretation is pointed to in the definition of damages since it refers to a compromise or settlement of a claim for damages, whether or not legal proceedings have been instituted. There is no definition of damages in either the DD Act or HREOC Act and the reference to orders for damages in s46PO(4) of the HREOC Act does not assist as there is no equivalent provision in the sections of the HREOC Act dealing with the Commission’s powers to conciliate matters.
30. A complaint of a breach of the DD Act may give rise to a legal right to compensatory damages or it may not. HREOC can broker settlements involving the payment of money, but that payment need not correspond to any legal entitlement or claim for such. The HREOC website sets out the following:
A substantial proportion of complaints under the DDA are resolved by the parties deciding to settle the matter by conciliation, with the assistance of the Commission but without the Commission or the courts having to formally decide that unlawful discrimination has occurred or what the remedy should be.[1]
[1] this case, Mr Barclay’s evidence was clear that he offered the settlement to ensure that the working relationship would continue and Mr Barclay appears to have taken pains to ensure that the settlement was not based upon conclusions about legal rights. A payment under such a settlement need not be exclusively or at all attributable to a disease or injury whether or not covered by the definition of injury in the Act and the Tribunal accepts Mr Barclay’s evidence that it was not.
32. Finally, it should be noted that under the HREOC Act, s46PH(1) provides:
The President may terminate a complaint on any of the following grounds:
…
(e) the President is satisfied that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to each affected person;
…
(g) the President is satisfied that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority; …
There was no evidence that the respondent put forward any submission to HREOC on the basis that what the applicant sought was compensable elsewhere.
DECISION
33. The applicant’s claim for compensation is not precluded under s48(4) of the Act by the settlement of her complaint lodged with the Human Rights and Equal Opportunity Commission on 6 March 2003.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M Carstairs, Member
Signed: Sarah Oliver
AssociateDate of Preliminary Hearing 3 June 2004
Date of Decision 20 August 2004
For the Applicant Mr Plettell, CEPU Delegate
Counsel for the Respondent Mr Clark
Solicitor for the Respondent Sparke Helmore