Court decision

Pre-shift injury is work related

By Melissa McGarrity and Robert Tidbury / 31 January 2019

Key issues:

  • A recent decision from the Industrial Court of Queensland has ordered the acceptance of a workers’ compensation claim after a worker fell from a ladder prior to commencing work. 
  • WorkCover rejected the claim claiming that while the injury occurred at her place of work, it was not in course of her employment or associated in her duties. 
  • Injuries sustained during attendance at work, but prior to the commencement of a shift may be considered as falling within the course of employment.

In a recent decision of Mandep Sarkaria v Workers’ Compensation Regulator [2019] ICQ 001 the Industrial Court of Queensland ordered the acceptance of a workers’ compensation claim where a McDonald's worker fell from a ladder whilst descending from the roof prior to commencing work.

WorkCover Queensland (WCQ) rejected the claim on the basis that Ms Mandep Sarkaria’s employment was merely the setting of her injury and was not associated with her duties. The Workers’ Compensation Regulator (the Regulator) and later the Industrial Relations Commission (IRC) confirmed the decision of WCQ. Ms Sarkaria appealed the decision of the IRC on the basis that it erred in finding that Ms Sarkaria’s injury fell within s34(1)(c) of the Workers’ Compensation and Rehabilitation Act 2003 (the Act).

Background

On 1 November 2016, Ms Sarkaria attended her shift at the Richlands McDonald’s Restaurant. In accordance with her employment agreement and policy imposed by her employer, Ms Sarkaria arrived 10 minutes prior to her shift commencing. During that 10 minute period preceding the start of her shift, Ms Sarkaria climbed a three metre ladder inside a storeroom in order to gain access to the roof of the premises. She went there to smoke a cigarette. Later, whilst descending the ladder, she fell and broke her right leg.

At the time of sustaining the injuries, Ms Sarkaria had not commenced her shift. The injury occurred 10 minutes prior to the commencement of her designated shift. The claimant’s employer required her to be present for work 10 minutes prior to her shift commencing. Ms Sarkaria argued that the IRC erred in dismissing the matter on the basis that her injury fell within s34(1)(c) of the Act. 

In order to fall within the scope of s34(1)(c) the event must:

  • occur on the day the worker had attended  the place of employment as required under the terms of employment; 
  • occur while the worker was temporarily absent from the place of employment; 
  • occur during an ordinary recess; and 
  • not occur due to the worker voluntarily subjecting herself to an abnormal risk of injury during the recess.

Was the rooftop Ms Sarkaria’s place of employment?

It was argued that the rooftop was not a designated smoking area for staff. Ms Sarkaria: 

  • did not seek permission to go on to the rooftop; 
  • had no encouragement by the employer, either express or implied, to be on the rooftop at that time; and 
  • there was a sign on the ladder warning against going onto the rooftop. 

However, it was noted that, on occasion, the ladder was used by managers and other staff to undertake cleaning duties on the rooftop on a regular basis.

In determining whether the rooftop was Ms Sarkaria’s place of employment, President Justice Martin referred to the test set in WorkCover Queensland v Dreadon [1999] QIC 47 which noted:

  • there must be a connection between the land or property and the work duties of the employee; 
  • consequently, the definition must be applied to each case on its own facts; and 
  • thus, whether there is a connection is relative to the nature of employment.

While Ms Sarkaria’s employment did include cleaning the roof from time to time, this only occurred in circumstances where it was authorised and accompanied by a manager.  

Both of these matters supported the conclusion that the roof was not within the ‘place of employment’ at the time.

Did the injury occur in an ordinary recess?

President Justice Martin noted that the Act is described as being ‘beneficial’ legislation. As such, its terms should be construed so as to give the fullest relief, which the fair meaning of its language will allow.
 
In that regard, while Ms Sarkaria was required to attend her place of employment 10 minutes before the commencement of her shift, there was no work for her to do in that 10 minute period. 

President Justice Martin determined it was an ordinary consequence of the employer’s requirement that employees arrive by a set time before their shift starts and that there was, for each such employee, a ‘recess’ between the times required to arrive at work and the commencement of the work period.

Therefore, it was determined that the period of time during which Ms Sarkaria was required to arrive at the place of employment before her shift commenced should properly be regarded as an “ordinary recess” for the purposes of s34 of the Act.

Abnormal risk of injury during the recess

The IRC determined that as Ms Sarkaria had accessed the roof on numerous occasions prior to the injury as part of her work duties, the access to the rooftop and use of the ladder was unlikely to be considered an abnormal risk of injury by climbing down the ladder. 

As the IRC confirmed, the incident was not considered an ‘abnormal risk’, it was not the subject of the appeal to the Industrial Court.

Decision

Accordingly it was determined that Ms Sarkaria’s injury fell within the scope of s34(1)(c).

Take away points

  • The Act is considered beneficial legislation and terms will be construed to give the greatest relief a fair meaning of the language used will allow; and
  • Injuries sustained during attendance at work, but prior to the commencement of a shift may be considered as falling within the course of employment.

For more information or discussion, please contact HopgoodGanim Lawyers’ Insurance team.

Authors
Melissa McGarrity
Senior Associate
Melissa is a Senior Associate in our Insurance practice.
Robert Tidbury
Partner
Robert is the lead Partner and head of HopgoodGanim Lawyers’ Insurance practice.
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