Does this mean public servants will be properly compensated for workplace injuries?

WRITTEN BY John Wilson & Kieran Pender

Despite significant progress in work health and safety in recent decades, workplaces of all kinds retain an element of danger.

Some are obvious – say, exposed wiring at a building site, or a trip hazard next to the office printer. Others are less visible but no less hazardous: a bullying boss, or a colleague prone to racist or sexist comments.

For a long time, the law has sought to protect workers from workplace hazards and provide for compensation when they suffer injury. As much is uncontroversial: workplaces (public and private) owe a duty of care to their employees to provide a safe workplace. When they fail to do so, the employer should be liable.

If only it was so simple. At first, injured workers could bring claims against their employers using the ordinary law of negligence. Just as someone injured in a car crash could sue a negligent driver, so too could workers sue their negligent employers. But tort litigation is complex and expensive. Over time, workers’ compensation schemes developed to simplify the process and provide fair and reasonable support to employees injured at work – and assist with their return to the workplace once recovered.

The creators of such schemes did not want employees to “double-dip” – to both claim under workers’ compensation laws and also sue for negligence. Accordingly, limitations were imposed – extinguishing rights to sue, or requiring employees to elect which approach they wished to pursue.

In 1988, when the federal government created the specialised workers’ compensation scheme for public servants, Comcare, these considerations were front of mind. The relevant legislation, the Safety, Rehabilitation and Compensation Act (SRC Act), provides that (some exceptions aside), “an action or other proceeding for damages does not lie against the Commonwealth in respect of an injury sustained by an employee in the course of their employment.”

In other words, injured public servants cannot bring an ordinary common law negligence claim against the federal government. Instead, they receive the right to support through the Comcare scheme. Another provision in the law even enables Comcare to reclaim funds where an APS worker receives workers’ compensation payments and subsequently settles a claim against the government. It’s Comcare’s way or the highway.

So far, so good. However, since the dawn of workers’ compensation regimes, which were largely conceived to deal with physical injury, laws have developed to protect against other forms of workplace injury. For example, there are a suite of federal laws that prohibit sexual harassment, sex discrimination, age discrimination, race discrimination and disability discrimination.

For some time, there have been uncertainties around how these laws, particularly where they are used to seek compensation for workplace-related injuries, intersect with the Comcare scheme. This issue is particularly significant because Comcare does not allow any compensation for non-economic loss (such as hurt, humiliation and distress), other than in cases of permanent impairment – where pre-determined amounts are paid. Such damages are, however, commonly awarded in unlawful discrimination matters – and often for significant (and increasing) sums.

All of which brings us to the sorry saga of Kelly-Anne Friend and a landmark judgment of the Full Federal Court handed down last month, to the benefit of all federal public servants.

Friend was an Australian Federal Police officer, who in 2014 lodged a Comcare claim following prolonged exposure to what she claimed was harassment and bullying at work. Several years later, she filed a separate discrimination claim against the AFP, alleging disability discrimination, sex discrimination and sexual harassment. She alleged that her workplace-related psychological injuries meant she was unlikely to ever work again. In 2020, Friend and the AFP settled the discrimination claims for $1.25 million.

Comcare subsequently sought to recover more than half of this sum (representing payments it had made to Friend over the course of her injury), using its clawback powers, on the basis that the settlement constituted damages “in respect of an injury” that was barred under the SRC Act. It was a landmark legal challenge and left many public servants seeking to resolve workplace injury disputes in a position of uncertainty. It also had considerable public policy implications – as we had asked in a prior column, “Does Comcare allow the Commonwealth to discriminate with impunity?”

In 2021, the Federal Court found against Comcare. “It is difficult to see a policy reason [that would support Comcare’s position],” held the judge, Steven Rares. Refusing to accept what seemed to us to be the sensible interpretation of the law, Comcare appealed. Following an unusually lengthy delay, in early February three judges of the Federal Court rejected the appeal. Friend will be allowed to keep every cent of her settlement.

One significant aspect of the Court’s reasoning went to the wider impact of accepting that discrimination claims fell within Comcare’s remit. Such an approach, the court held, “could have a chilling effect on the bringing of such complaints in a way that might undermine the objects of the discrimination legislation”. While this impact “is not decisive,” the court added, “it gives reason to pause before accepting Comcare’s submissions.”

Comcare v Friend therefore at last brings clarity for all public servants, that their rights under Comcare are not impacted by their electing to bring a discrimination claim, and vice versa. This is a just, sensible outcome. The limitations in the Comcare legislation was intended to prevent double-dipping in relation to like-remedies – compensation in negligence claims. It is extremely unlikely that Parliament, when enacting the SRC Act not long after legislating some of Australia’s foundational anti-discrimination laws, intended to limit public servants’ access to them.

Friend’s case is a reminder of the significant costs of workplace hazards – to Friend’s career and enjoyment of life, and ultimately to the taxpayer. All employers have an obligation to provide safe workplaces – an obligation underscored by the new positive duty to prevent sexual harassment and sex discrimination. But it is some small consolation that, following this judgment, at least public servants can be properly compensated for workplace injuries they suffer.

The above article was written for and published in the Canberra Times.

For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.

Join our mailing list

Get in touch