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Phillips v Australian Capital Territory

Phillips v Australian Capital Territory

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ACT CIVIL & ADMINISTRATIVE TRIBUNAL

PHILLIPS v AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY CHIEF MINISTER, TREASURY AND ECONOMIC DEVELOPMENT DIRECTORATE) (Discrimination) [2021] ACAT 22

DT 21/2020
Catchwords: DISCRIMINATION – referral of discrimination complaint to ACAT by Human Rights Commission – where complainant receiving workers compensation from respondent or its agent ‒ protected attributes – where indirect discrimination asserted – whether workers’ compensation is sufficiently closely associated with employment – whether respondent imposed a condition or requirement – whether condition or requirement had the effect of disadvantaging the complainant – whether disadvantage caused by the complainant’s protected attribute – whether condition or requirement was reasonable – whether respondent committed unlawful act – orders – costs

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48
Discrimination Act 1991 ss 4, 4AA, 4A, 5AA, 7, 8, 10, 30, 67A, 68, 121A
Human Rights Commission Act 2005 ss 42, 51, 53A, 53CA, 53E, 82, 88
Public Sector Workers Compensation Fund Act 2018 ss 2, 18, 19, 21, 22, 23
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4A, 5, 5A, 5B, 8, 11, 14, 16, 19, 23A, 54, 99, 102, 103
Workers Compensation Act 1951 s 31

Cases cited:ACT v Wang [2019] ACAT 65
Almassey and Omari and ACT Multicultural Council Inc [2008] ACTDT 2
Bureau of Meteorology and Comcare [2015] AATA 267
Butcher v The Key King Pty Ltd [2000] ACTDT 2
Catholic Education Office v Clarke [2004] FCAFC 197
CIC Ltd v ACT Planning and Land Authority [2013] ACTSC 96
Cook and Comcare [2017] AATA 227
Daff and Comcare [2010] AATA 732
Fleming and Comcare, [2004] AATA 1016
JQWK and Comcare [2013] AATA 830
Kovac v the Canberra Croatian Club Ltd [2014] ACAT 41
Kovac v the Australian Croatian Club Ltd (No 2) [2016] ACAT 4
Lees v Comcare [1999] FCA 753
Nicholls and Nicholls v Director-General, Department of Education and Training (No. 2) [2009] NSWADTAP 20
Purvis v New South Wales [2003] HCA 62
Richardson v Oracle Corporation [2014] FCAFC 82
Steins and Comcare [2019] AATA 803
Tyrell v Coles Supermarkets Pty Ltd [2020] NSWCATAD 57
Walker v State of Victoria [2011] FCA 258
Waters v Public Transport Corporation [1991] HCA 49

List of

Texts/Papers cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (5^th edition, 2013)
Kellie Edwards, General Damages in Discrimination/Adverse Action Claims, CPE Conferences, 2017

Tribunal: Senior Member M Hyman

Date of Orders:  23 March 2021
Date of Reasons for Decision:         23 March 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 21/2020

BETWEEN:
VICKI PHILLIPS
Applicant

AND:
AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY CHIEF MINISTER, TREASURY AND ECONOMIC DEVELOPMENT DIRECTORATE)
Respondent

TRIBUNAL: Senior Member M Hyman

DATE:23 March 2021

ORDER

The Tribunal orders that:

The ACT, in its role as insurer under the Safety, Rehabilitation and Compensation Act 1988 (Cth) and through its contracted claims manager and rehabilitation provider, must:
(a)on the basis of the expert advice of a psychiatrist or clinical psychologist, provide training to those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] ACAT 22
Decision Date: 23 March 2021

CaseChat Overview and Summary

The matter before the Australian Capital Territory Civil and Administrative Tribunal (ACAT) was a complaint of discrimination by the applicant, Mr Phillips, against the respondent, the Australian Capital Territory (ACT). The ACT was alleged to have indirectly discriminated against Mr Phillips, who was receiving workers compensation from the respondent or its agent, by imposing a condition or requirement that had the effect of disadvantaging the complainant because of his protected attribute. The respondent's handling of Mr Phillips' workers compensation claim for a mental injury was the subject of the complaint.

The central legal issues in this case were whether workers' compensation was sufficiently closely associated with employment to fall within the definition of 'protected attribute' under the Anti-Discrimination Act 1991 (ACT), and whether the respondent's actions constituted indirect discrimination. Further, the court needed to determine if the respondent had imposed a condition or requirement that had the effect of disadvantaging the complainant due to his protected attribute, and whether that condition or requirement was reasonable.

The Tribunal found that workers' compensation was sufficiently closely associated with employment to be considered a protected attribute. The Tribunal held that the respondent had imposed a condition or requirement through its handling of Mr Phillips' claim, which had the effect of disadvantaging him because of his mental injury. The Tribunal concluded that the disadvantage was caused by the complainant's protected attribute and that the condition or requirement was not reasonable. Consequently, the Tribunal found that the respondent had committed an unlawful act by indirectly discriminating against Mr Phillips.

In light of these findings, the Tribunal ordered the ACT to provide training to staff dealing with injured workers with a mental injury and to institute improved procedures for dealing with mental injuries. The Tribunal also ordered the respondent to pay Mr Phillips $9,000 by way of general damages. There was no order as to costs or interest.

Orders

Orders of the court

The Tribunal orders that:

The ACT, in its role as insurer under the Safety, Rehabilitation and Compensation Act 1988 (Cth) and through its contracted claims manager and rehabilitation provider, must:

(a) on the basis of the expert advice of a psychiatrist or clinical psychologist, provide training to those staff dealing with injured workers with a mental injury, so as to minimise the risk of triggering symptoms or otherwise exacerbating the injury; and

(b) institute improved procedures for dealing with mental injuries aiming to:

(i) avoid delays in processing of claims;

(ii) provide timely responses to enquiries by injured workers;

(iii) keep injured workers informed of progress on their claims; and

(iv) provide timely advice to injured workers regarding any impediments to claims being processed.

Complete the introduction of the changes set out in (a) and (b) above by 31 March 2022.

By 5:00pm on 30 April 2021, the respondent must pay to the applicant an amount of $9,000 by way of general damages.

There is no order as to costs or interest.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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