For an injury to be compensable under an Australian Workers Compensation scheme, it needs to have arisen out of, or in the course of employment. There have been a number of cases which have tested the principles of what actually constitutes “in the course of employment” particularly where an injury occurs away from the usual workplace. The commonly accepted position taken by the Courts and Tribunals to date has been that the injury must have a connection with the encouragement or inducement of the employer, in order for liability to arise.
However, two recent cases have further tested the position of what types of duties may be deemed to be accepted as having occurred during the course of an individual’s employment, despite the employee undertaking actions away from the actual workplace.
A South Australian employee has had their workers compensation claim accepted after having sustained an injury while in his home driveway. The claim was accepted after the Tribunal held that the journey that the employee was about to undertake had a “real and substantial connection” with his employment with a State Utility Company.
The employee was based at Port Pirie, however his role as a powerline worker regularly required him to undertake both office and field-based duties, and to participate in a standby roster to attend call-out work outside of normal hours. In order to perform his role, the employee was in receipt of a company provided vehicle which he kept housed at his property.
While on standby in early September 2019, the employee was requested by his employer, via SMS, to attend a call out. After changing into his work attire to attend the call out, the employee got into the vehicle but dropped his keys which landed in his driveway after falling though the open car door. The employee remained seated in the driver’s seat of his 4-wheel drive but leaned out of the driver’s side door to retrieve the keys. Unfortunately, this reaching action resulted in the employee suffering a strain to his back.
The employee reported the injury to his employee before seeking medical treatment at the local hospital. As a result of his injury, the powerline worker incurred medical expenses and was incapacitated for work. He subsequently lodged a worker’s compensation claim for both medical costs and weekly payments.
The claim was rejected by his employer on the grounds that:
- the employee had not incurred the injury during his employment, rather that he had been undertaking activity preparatory to undertaking duties of employment
- that his employment was not a significant contributing cause of the injury,
- the worker was not in the course of a journey at the relevant time, as he was at his place of residence, and
- there was no substantial connection between employment and the journey being undertaken or between the worker’s employment and the accident.
This rejection was challenged by the worker and the case was heard by the South Australian Employment Tribunal. In defending his claim, the employee argued that his injury occurred in the course of carrying out his duties, as the journey he was commencing was undertaken for the purpose of carrying out the duties of employment.
Although previous cases heard by the Tribunal held that there had to be a real and substantial connection between the employment and the accident in order for an injury to be compensable, the Deputy President Judge disagreed in this instance. The Deputy Judge found that the present Act in South Australia requires a real and substantial connection between the employment and the journey being undertaken at the time of the accident out of which the injury arises, and that changes made to the wording of the South Australian legislation has shifted the emphasis from being on the connection between the accident and the employment to focusing on the connection between the journey and the employment. As a result, it was ruled that the worker’s claim must be accepted.
Injured while walking a dog
An injury suffered by a man who fell and broke his leg while walking his dog in Tasmania was found by a Tribunal to have arisen in the course of his employment because he was on call at the time.
The Relief Area Coordinator was employed by a major state government owned corporation and at the time of the incident, was on call at the employer’s accommodation based in Tullah, in Western Tasmania.
There were no limits or restrictions placed by the employer on what activities could be undertaken by employees when there were on call, other than that they were to be mindful of the range of phone coverage and they were to stay where they would be able to answer the phone and respond to a call within 15 minutes. On call employees were also required to be fit to drive and sufficiently rested to enable them to respond to a call.
On 25 May 2018, the employee went for a walk with his partner and his dog. In doing so, he ensured that the route walked provided mobile phone reception so he would be contactable, and which enabled him to be in a position to be ready to get to work within 15 minutes if required. During this walk, the employee slipped and fell, breaking his left leg. The employee lodged a worker’s compensation claim which was disputed by his employer on the basis that the injury did not arise out of or in the course of his employment.
During the subsequent Tribunal hearing, the employee conceded that his injury did not ‘arise out of’ his employment, instead claiming that the injury was sustained ‘in the course of’ his employment. In stating his case, the employee maintained that he had been injured in circumstances which possessed a sufficient connection to his work and was therefore incurred ‘in the course of’ his employment. Conversely, the employer’s argument was that the employee’s injury related to his activity in taking his dog for a walk, and activity which they had not induced or encouraged.
In making his findings regarding the claim, the Chief Commissioner took into consideration the findings of similar cases previously heard in the High Court that addressed the issue of what constituted being in the course of employment. The Chief Commissioner concluded that the employee’s injury had occurred during a period in when he was rostered to be available for work, and that in going for a walk with his dog, he was not doing anything inconsistent with being on-call for duty for his employer. The Chief Commission held that this, combined with the fact that:
- employees were encouraged to be proactive in managing their own health and wellbeing,
- walking was a recognised practice for all employees at that particular location,
provided the necessary connection between the workers employment and the activity being undertaken at the time of incurring his injury.
As a result, the tribunal found that the employee’s injuries did arise in the course of his employment and that compensation was payable.
Despite the Tribunal’s decision in these particular cases, it does still remain to be seen whether this is the position that will continue to be adopted consistently going forward. However, the outcomes of both cases do support that the question of whether an injury has arisen in the course of a person’s employment will take into account not only the time, place and circumstance of the employee’s activity when they are injured, but also the general nature and circumstances of their employment.
If you require assistance with managing WorkCover matters, or if you require HR Advice, please contact the team at HR Advice Online on 1300 720 004.
Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such