Damages payout thwarts claim; doctor proves case


Damages payout thwarts claim; doctor proves case

A tribunal has ruled a doctor was racially discriminated against; and an employee has lost a bid for lump sum compensation due to a damages settlement.


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A damages settlement effectively blocked a woman from making a workers comp claim, a commission has ruled.

Meanwhile, a doctor has substantiated his claim the ACT government racially discriminated against him.  

Discrimination damages block compo claim

A settlement for a discrimination matter effectively blocked a worker from bringing a claim for a workers compensation lump sum award based on essentially the same factual situation, the NSW Workers Compensation Commission (Presidential) has ruled.

President Keating heard that the worker's complaint to the Australian Human Rights Commission was discontinued upon execution of a deed of release in the worker’s favour. The claim had been based on a psychological injury.

At the same time the worker claimed weekly workers compensation for a psychiatric injury arising from employment. She alleged her employer had ended flexible work-from-home arrangements. There were other allegations relating to unfair discipline. 

No double recovery permitted

The president said the arbitrator who found for the worker in the compensation matter failed to make any finding in respect of whether the damages recovered by Ms M were in respect of an injury and, if so, what that injury was.

The arbitrator was required to determine if the damages recovered pursuant to the deed were damages for the same psychological injury before the arbitrator.

The arbitrator found the deed on its face did not relate to damages "in respect of an injury".

The president found the arbitrator focused on a construction of the deed rather than applying the statutory language to determine whether the amount paid to Ms M pursuant to the deed was “damages in respect of an injury”.

It followed that the contractual intention of the parties could not be determinative of the question of whether Ms M recovered damages in respect of an injury. 

The compensation claim was rejected

Super IP Pty Limited v M [2016] NSWWCCPD 33 (28 June 2016) 

Overseas doctor discriminated against

The ACT Civil and Administrative Tribunal ruled a claim against the ACT government based on racial discrimination (direct and indirect discrimination) was substantiated.

The policy in issue was designed to prioritise grants of medical internships to local and interstate graduates over overseas trained doctors and this constituted discrimination.

Was discimination on basis of race?

The issues for the tribunal were: (a) whether ‘direct discrimination’ on the basis of ‘race’ (defined to include ethnicity, national origin and nationality) had occurred; or (b) in the alternative, whether ‘indirect discrimination’ had occurred. 

The core of the dispute concerning ‘direct discrimination’ came down to the construction of the concept of ‘characteristic’ in section 7(2) of the DA. Favouring graduates with tthe characteristic of local education was discriminatory.

Discrimination proven

The core of the dispute over ‘indirect discrimination’ came down to the application of section 7(2) and whether the policy was a ‘reasonable’ response within the meaning to the circumstances of the ANU Medical School and the ACT.

The government advanced other motivations for the unfavourable treatment of overseas doctors based on assertions of the superior candidature of new ANU graduates over the graduates of all other Australian and international universities; and over the best and most experienced doctors in the world who graduated from a non-Australian university. 

The tribunal found there was neither evidence nor common sense to support these assertions and they were rejected.

The findings were sufficient to amount to direct discrimination. 

The government advised the tribunal that "category eight" of the policy had now been removed entirely. This only meant that overseas trained doctors were not considered at all. This development only served to make the policy more discriminatory and not less so.

The tribunal concluded that there was a prima facie undesirability of a government promulgating policies that were intrinsically discriminatory on the basis of race.

It was not satisfied the policy was reasonable and it therefore was indirectly discriminatory as well.

The tribunal directed the government to consider the doctor "on his merits" for the next internship intake.

Dr W was entitled to more than a token award. The tribunal awarded a sum of $40,000.

W v Australian Capital Territory [2016] ACAT 71 (30 June 2016)

See also: One discrimination claim succeeds, two others fail

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