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November 2021

Comcare compensation payments found not to be part of damages for sexual harassment

Comcare compensation payments found not to be part of damages for sexual harassment

The Case

Friend v Comcare (2021)

In September 2006, Ms Friend commenced employment with the Australian Federal Police (AFP) and in 2013, she commenced working at Sydney International Airport. Over an 8-month period, Ms Friend was sexually harassed and bullied by her supervisor and other AFP officers. Ms Friend ceased work and was diagnosed with severe depression, anxiety and PTSD. In 2014, Ms Friend made a successful Comcare claim due to the injuries caused in her employment arising from the conduct and received Comcare compensation payments.

In 2018, Ms Friend lodged a claim in the Australian Human Rights Commission (AHRC) against the AFP for discrimination on the grounds of her disability and gender, and for sexual harassment. Among other things, the conduct consisted of inciting malicious rumours about Ms Friend, inappropriate touching and comments, and sharing explicit images.

At the AHRC conciliation, the AFP reached an agreement with Ms Friend, requiring her to sign a deed to receive compensation of $1.25 million. The deed provided that Ms Friend would release and indemnify the AFP against any other claims of which Ms Friend or the AFP became aware after the settlement. However, the deed contained a carve out that said that the release and indemnity did not apply to any claim under the applicable workers’ compensation legislation.

Thereafter, Comcare sought that Ms Friend repay the $677,364 in Comcare compensation payments paid to her. Comcare claimed the compensation paid to Ms Friend as part of the AHRC proceedings was ‘damages’ in respect of an injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Comcare argued that Ms Friend had double dipped and received compensation twice for the same injury.

Ms Friend bought an application in the Federal Court seeking a declaration that the Comcare monies did not need to be repaid.

The Verdict

The Federal Court found Ms Friend did not have to repay Comcare, and the damages she had received as part of the AHRC proceedings were not damages within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Court held that the damages in respect of the unlawful discrimination and sexual harassment was distinct and separate from the Comcare damages.

The Lessons

Compensation paid in respect of an employee’s claim for damages arising from discrimination, sexual harassment and other employment matters will generally be construed by a court or commission as separate and distinct from the compensation or damages an employee receives for an injury under workers’ compensation. Employees can have multiple claims against an employer.

This case demonstrates the importance of minimising the risks of discrimination and sexual harassment, and proactively addressing situations if they do arise.

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