The loss of employment, after a workplace injury, is not an easy life event to overcome, especially if it results from the unfair or unjust treatment of an employer. When such an event happens, it is good practice to seek legal advice about what your options are and how protect all of your entitlements arising from the employment termination.
If your termination results from a workplace injury, the common action is a claim for workers compensation, which will assist you with payments of weekly benefits and treatment expenses, and you may also be eligible to receive a lump sum compensation for your injuries. In certain circumstance, you may also be able to sue the workers compensation insurer (and employer) in a negligence claim seeking compensation for your past and future economic loss, and loss of superannuation benefits.
Apart from the above, you may also be eligible to sue the employer in for unfair dismissal, discrimination and so on. What is not commonly known is that these types of claims can have devastating impact on your workers compensation rights.
You can end all of your workers compensation and negligence rights (and be ordered to repay the workers compensation insurer the benefits paid to you/on your behalf) if in the non-workers compensation claim:
- You state that the cause of that claim is the same as the cause for your workers compensation claim (ie, arising from the same event/s).
- You sustained an “injury” from these events.
- You are seeking “damages” resulting from the injury.
A recent case dealing with these issues is the matter of Gardiner v Laing O’Rourke Australia Construction Pty Limited. In this case, Mr Gardiner commenced a workers compensation claim for a psychological injury due to bullying and harassment. Several months later, when his employment was terminated, Mr Gardiner also brought an action for discrimination (on the grounds of a mental illness). The anti-discrimination claim settled several months later, and a Deed document was signed by Mr Gardiner and his former employer.
At the Workers Compensation Commission, Mr Gardiner lost his claim. The Arbitrator found that the anti-discrimination tribunal documents filed by Mr Gardiner, and the Deed set out facts which were nearly identical to the workers compensation facts, it dealt with the same injury (psychological injury), and he received “damages” for that “injury”. Furthermore, the wording of the Deed made it clear that the employer, in paying out the settlement amount in the anti-discrimination claim, intended it to be payment to settle all claims in relation to the psychological injury. Mr Gardiner appealed the outcome in the Workers Compensation Commission. Regrettably the President of the Commission confirmed the decision of the Arbitrator.
We strongly recommend that you contact us if you have a workers compensation claim and intend to also pursue an anti-discrimination or employment law claim. Our experienced solicitors will be able to provide you with the relevant advice to protect your entitlements.