High Court ruling doesn’t thwart interstate injury claims

18 September 2018

A recent High Court judgment in an anti-discrimination case does not bar the determination of an interstate worker’s injury claim, a tribunal has ruled. However, it rejected the worker’s bid for weekly benefits for Post Traumatic Stress Disorder (PTSD) arising from bullying and racial discrimination.

Background

A Rio Tinto Aluminium (Bell Bay) Ltd (Rio Tinto) employee, a principal HR advisor, claimed workers’ compensation for ongoing stress symptoms, and then PTSD, after being censured by a superior over the phone for failing to comply with the correct procedure for dealing with unfair dismissal claims. The worker contended that the November 2017 phone conversation was the “final straw”, after being intimidated, bullied, harassed and racially discriminated against since joining the Tasmanian company.

The employer told the State Workers Rehabilitation and Compensation Tribunal (WRCT) that the phone conversation was reasonable administrative action taken in a reasonable manner, and the worker’s incapacity arose from a congenital cardiac condition rather than a psychological injury.

It also argued that as the worker now lived in NSW, the WRCT might not have jurisdiction to determine the matter, in light of the High Court’s April 2018 decision in Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15.

That case involved a NSW man who, in 2013 and 2014, made complaints to the NSW Administrative Decisions Tribunal and Civil and Administrative Tribunal that a resident of Victoria and a resident of Queensland had breached the Anti-Discrimination Act 1977 (NSW) in making public statements that vilified homosexuals. The High Court found that such tribunals weren’t “courts of the States”, meaning they didn’t have jurisdiction to rule on matters between “residents of different States“.

In the current case, WRCT Commissioner Lucinda Wilkins found she had jurisdiction to hear and determine the matter because Rio Tinto was a corporation rather than a resident of Tasmania within the meaning of the Australian Constitution. The worker lived in NSW, but there was “no dispute between ‘residents’ of different States“, she found.

Commissioner Wilkins went on to find that Rio Tinto had a “reasonably arguable case” against the worker’s claim and, pursuant to section 81A(3)(c) an (d) of the Workers Rehabilitation and Compensation Act 1988 (TAS), was not obligated to pay him weekly compensation or other benefits.

This means that if the worker wants to pursue his claim further, he will need to make a referral to the WRCT to deal with the matter on its merits.

Learnings

Even though they no longer work for employers and even though they may have moved interstate, a worker may still pursue claims against an employer. Whether or not the claim has merit will still need to be proven by the worker in the original jurisdiction.