The Victorian Civil and Administrative Tribunal (VCAT) awarded a
record $330,000 in damages to a postal worker who was sexually
harassed by her boss and suffered psychiatric injuries under
Victoria's Equal Opportunity Act 2010 (EOA), despite
her injuries also falling within the gateway provisions of the
Accident Compensation Act 1985 (Vic.) (ACA) and the
Workplace Injury Rehabilitation and Compensation Act 2013
This decision could have significant ramifications for
employers. Firstly, as the EOA cannot be read down by reason of the
ACA/WIRCA, a worker who suffers psychiatric injury as a result of
harassment or discrimination at work is able to recover damages in
the Tribunal, without being required to satisfy the serious injury
threshold. Secondly, where a worker recovers damages under the EOA,
there may be nothing preventing them from bringing a further claim
for damages for the same injuries under the ACA/WIRCA, giving rise
to "double dipping". This reinforces the importance of
carefully worded Deeds of Release in settlements of statutory
benefits and common law claims under the ACA/WIRCA, although
employers are unlikely to be able to contract out of their
liability under the EOA.
While Ms Collins, the Applicant in this case, had previously
received WorkCover benefits, she had not received an award of
damages against her employer under the ACA/WIRCA. Employers may
find some comfort in the previous equal opportunity decisions of
Coyne v P & O Ports  VCAT 657 and Capodicasa
v Herald and Weekly Times Limited  VADT 14, where it was
held that—in circumstances where an injured worker receives a
settlement or compensation for injuries later forming the basis of
an application for damages for harassment or discrimination under
the EOA—any subsequent award of damages must be reduced or
discounted accordingly, otherwise the worker is being compensated
twice for the same damage.
Ms Collins was employed by Mr Smith, the Respondent, who owned
and managed a Geelong Licensed Post Office.
Ms Collins alleged that she was sexually harassed by Mr Smith
over four months in 2013. The alleged harassment included
persistent and unwelcome conduct of a sexual nature, physical
contact, verbal comments and written communications. As a result of
Mr Smith's conduct, Ms Collins developed a severe psychiatric
condition and was unable to work.
Ms Collins, who had previously received WorkCover benefits,
lodged an application in the VCAT seeking general and specific
damages by way of compensation for breaches of the EOA. In an
initial decision dated 10 July 2015, Vice President Judge Jenkins
found that Mr Smith had acted in breach of provisions of the EOA
relating to unwelcome sexual advances and sexual harassment by an
employer. The matter was adjourned to a further hearing for the
assessment of compensation.
At the hearing on the question of compensation, Counsel for Mr
Smith argued (among other things), that the Tribunal's power to
award damages to Ms Collins for pecuniary or non-pecuniary loss
under the EOA was restricted by ss 134AA and 134AB of the ACA or ss
326 and 327 of the WIRCA, which limit the right of a worker to
recover damages for injuries arising out of, or in the course of,
their employment. As Ms Collins had suffered psychiatric injuries
in the course of her employment, it was argued she was only
entitled to recover damages for those injuries under the
For various reasons of statutory interpretation, Vice President
Judge Jenkins rejected Mr Smith's argument that the Tribunal
was prevented from awarding damages by the provisions of the ACA
and/or WIRCA. It was found, in particular, that the EOA and the
ACA/WIRCA were capable of being read "harmoniously" and
the compensation awarded under the EOA had a different character to
a claim for damages under the ACA/WIRCA. Ms Collins was awarded
damages of $332,280 in total, comprising of general damages of
$180,000; aggravated damages of $20,000; past loss of earnings and
superannuation of $60,000; future loss of earnings and
superannuation of $60,000; and out of pocket expenses of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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