WRES - Insights - banner - 1900 x 500

How a smoko before work led to a broken leg (and workers’ compensation)

Anthony Massaro and Abbey Burns

A Queensland Court has held that a worker directed to arrive at work 10 minutes prior to her start time was covered by the WorkCover system during that period – despite the fact that she was not performing any duties.


Sarkaria v Workers’ Compensation Regulator [2019] ICQ 1

The Industrial Court of Queensland found that where a worker is required to attend a place of employment prior to their scheduled start time, the window between attending work and starting work is an ‘ordinary recess’ for the purpose of Queensland’s workers’ compensation legislation.

As similar language exists in workers’ compensation legislation in many other States, employers across Australia should be conscious that requiring employees to arrive at work early may have unintended consequences.


Background

McDonald’s Richlands had a policy of requiring staff to arrive 10 minutes before their shift in order to facilitate efficient shift changeovers. Ms Sarkaria had arrived ten minutes early. She climbed a ladder to the roof of the premises to smoke a cigarette during this period. Upon climbing down, she fell from the ladder and broke her leg, and claimed workers’ compensation.

The Queensland workers’ compensation system expressly applies to injuries occurring when a worker is temporarily absent from the place of employment during an ordinary recess, as long as the event is not due to the worker voluntarily subjecting themselves to an abnormal risk of injury.

Both WorkCover Queensland and the Industrial Relations Commission rejected Ms Sarkaria’s claim for compensation on the basis that, amongst other reasons, the time between her attendance at work and commencement of her shift was not an ‘ordinary recess’, and therefore her injury did not occur ‘in the course of her employment’.


Findings on Appeal

The Industrial Court of Queensland overturned these decisions, finding that the term ‘ordinary recess’ could include a period of time before a scheduled shift begins if the employer required the worker’s early attendance.

As Ms Sarkaria’s early attendance at work was due to her employer’s policies, it could be considered to be an ordinary recess, with the result that the injury was considered to have arisen out of or in the course of her employment.


Lessons for employers

While this is a Queensland decision, it has implications for employers in most other Australian jurisdictions.

Workers’ compensation legislation in Victoria, New South Wales and the Northern Territory contains similar wording around coverage of recesses to the Queensland Act.

In South Australia, the legislation expressly states that a worker’s early attendance at work for the purposes of preparing for work is covered.

The Western Australian system applies to any injuries arising while the worker is acting under the employer’s instructions, which would likely cover the scenario of a worker being instructed to attend work early.

Accordingly, if you have a practice of requiring employees to attend work before their shift starts, you should be taking steps to ensure that they do not engage in unsafe behaviour during that period. That may be as simple as giving directions to employees as to how they use that time. Depending on the circumstances and the individuals involved, it may mean that supervision is necessary.

If you would like advice regarding how this decision might apply to you, please do not hesitate to contact the Workplace Relations, Employment and Safety Team.

If you’d like to stay up to date with Workplace Relations insights, please sign up here.

View related insights

Sexual Harassment Web Thumb

Sexual Harassment in 2019

13 May 2019

In March, Libby Pallot and Abbey Burns presented on sexual harassment in the workplace.

View
Man and Woman looking at bills or tax Thumb 360 x 240

Are you paying superannuation on annual leave loading? ATO clarifies position

18 Apr 2019

Superannuation contributions are calculated on an employee’s ‘ordinary time earnings’ (OTE). The ATO has recently confirmed that OTE may include annual leave loading.

View
Government building

How will the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability affect independent schools?

9 Apr 2019

On Friday 5 April 2019, the Prime Minister formally announced the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission).

View