Break-ception: when a pre-shift smoko on-site is a ‘temporary absence’ from work

Workers’ compensation legislation can be complicated and confusing, even to experts, and the recent Queensland case of Mandep Sarkaria v Workers’ Compensation Regulator [2019] ICQ 001 aptly demonstrates just how technically bewildering this legislation can be.

In this case, the Industrial Court of Queensland held that Ms Sarkaria was “temporarily absent from her place of employment” on an “ordinary recess” when she fell off a ladder and broke her leg, and thereby entitled to workers’ compensation.

The catch? She broke her leg in her employer’s storeroom – so how was she “absent” and how was she on an “ordinary recess”?

 

What happened?

Ms Sarkaria worked at a McDonald’s restaurant at Richlands, south-west of Brisbane. Her employer had a policy which required staff to arrive ten minutes before the start of their shift.

On 1 November 2016, Ms Sarkaria arrived ten minutes before her 9:00PM shift as required by the policy. While she was waiting for her shift to start, she climbed onto the roof of the restaurant via a ladder inside the storeroom to smoke a cigarette, which had been common practice amongst staff.

On her way back down the ladder to start he shift, Ms Sarkaria fell and broke her leg, for which she filed a workers’ compensation claim.

Ms Sarkaria’s claim was initially rejected on the basis that her injury was not associated with her duties at the restaurant, and on appeal this was upheld by the Queensland Industrial Relations Commission.

However, Ms Sarkaria appealed further to the Industrial Court of Queensland, and the President of the Court, Justice Martin, overturned the preceding decisions and ordered that Ms Sarkaria’s claim for workers’ compensation be accepted.

 

Ground of appeal & relevant legislation

As a general rule, under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act), in order for an employee to be eligible for worker’s compensation their employment must be a significant contributing factor to the injury – that is to say, it must arise from the work that they were required by their employer to perform.

There are, however, exceptions to this rule. Ms Sarkaria relied on section 34(1)(c) of the Act, which does not require employment to be a contributing factor to the injury in order to be eligible for compensation. A similar exception exists in section 35(1) of the Act, which allows workers injured on their way to or from work to claim workers’ compensation.

In order to rely on the exception in section 34(1)(c), Ms Sarkaria had to show that:

• the event (causing the injury) happened on the day on which she attended her place of employment in accordance with the terms of her employment; and
• the event happened while she was temporarily absent from her place of employment; and
• the event happened during an ordinary recess; and
• the event was not due to Ms Sarkaria voluntarily subjecting herself to an abnormal risk of injury during the recess.

In the earlier appeal to the Queensland Industrial Relations Commission, Vice President Linnane had held that elements (a) and (d) above were satisfied, but that elements (b) and (c) were not, and had therefore ruled against Ms Sarkaria.

The appeal to the Industrial Court challenged the findings of the Vice President in relation to elements (b) and (c) above, and as such the key questions for the Court to determine were:

• was Ms Sarkaria absent from her place of employment when she was injured; and
• was Ms Sarkaria on an “ordinary recess” when the injury occurred?

 

Absent from place of employment

In order to determine whether an employee is absent from their place of employment, it must first be determined what their place of employment actually is.

President Martin outlined two elements of this question, derived from the much earlier case of WorkCover Queensland v Dreadon [1999] QIRC 47, these being that:

• firstly, there must be some involvement of the employer, in the sense that the employer must exercise some degree of management or control over the area; and
• secondly, this broad area is narrowed down by having regard for the duties that the employee performs, and this may vary depending on various factors.

This means that not every part of an employer’s premises would be a “place of employment” for every employee.

In the case of Dreadon, for example, the employee (a knife hand in a meat packing plant) was assaulted in the car park outside his employer’s premises. Although the employer had management of the carpark, the carpark was not a “place of employment” of Mr Dreadon as he had no duties in relation to the carpark. In a similar vein, seasonal work may result in part of the business premises being a “place of employment” only during some times of the year.

In Ms Sarkaria’s case, her employer periodically required her to perform duties in relation to the roof, namely cleaning it, however this was only to occur in very particular circumstances such as being directed to be there by her employer and being under the direct supervision of a manager. In the absence of these conditions, access to the roof was restricted.

Ms Sarkaria argued, and President Martin accepted, that when those conditions were not met, the roof of the restaurant was not a “place of employment” for her. The roof, and the ladder leading to it, could only be a “place of employment” when Ms Sarkaria was performing cleaning duties at the direction of her employer. Consequently, by being on the roof at a time when access was restricted, she was “absent” from her place of employment.

 

Ordinary recess

Having successfully argued that she was “absent” from her place of employment, Ms Sarkaria next had to demonstrate that she was on an “ordinary recess”.

The expression “ordinary recess” was inexhuastively explored by the High Court in Landers v Dawson (1964) 110 CLR 664. Whilst stating that its consideration in no way limited the possible meanings of the expression, the High Court noted that the word “recess” is typically accepted to mean a brief interruption in an otherwise continuous period of work.

In Ms Sarkaria’s first appeal to the Queensland Industrial Relations Commission, Vice President Linnane held that because Ms Sarkaria had attended work ten minutes early, and had yet to start her shift, there was no period of “work” from which she could have been taking a recess.

President Martin, however, disagreed. The general statutory principle of “beneficial” legislation such as section 34(1)(c) is that such provisions ought to be interpreted in such a way as to give the fullest relief that a fair meaning of the language will allow. Added to this, section 34(1) requires that an employee must have “attended the place of employment as required under the terms of the worker’s employment”.

As the employer required Ms Sarkaria to attend her place of employment ten minutes prior to the commencement of her shift, the expression “recess” in the context of the legislation could fairly be interpreted to mean a recess from that attendance, as to apply a different interpretation would be inconsistent with the intention of the Act.

 

What does this mean for employers?

As workers’ compensation legislation throughout Australia is broadly similar, this case has the potential to affect all Australian workers and has set a precedent for employees in future compensation claims.

If your business expressly requires employees to arrive at work early at a set time before each shift, this will likely constitute a ‘work break’ or an ‘ordinary recess.’ As a result, it is important to ensure you have adequate safeguards in place to ensure you are not subject to a workers’ compensation claim similar to that discussed above.

As the case of Ms Sarkaria demonstrates, simply not authorising access to high-risk areas will not be sufficient – it may be that you will need to actively lock doors or other accessways to those areas. Other measures may include directing workers arriving before their shift commences to remain in a specific part of the business premises where there is a low risk of injury, such as a break room. These measures will need to be enforced in order to be effective, and failure to abide by them should result in disciplinary action in order to protect your position.

If you are unsure whether you have adequate safeguards in place to ensure you are not subject to a worker’s compensation claim, or if you would like further information from our team, please contact NRA Legal on 1800 572 679.

 

By Alex Millman and Victoria Hansen, NRA Legal