Pre-shift injury is work related
In a recent decision of Mandep Sarkaria v Workers’ Compensation Regulator  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).
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:
It was argued that the rooftop was not a designated smoking area for staff. Ms Sarkaria:
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  QIC 47 which noted:
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.
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.
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.
Accordingly it was determined that Ms Sarkaria’s injury fell within the scope of s34(1)(c).
For more information or discussion, please contact HopgoodGanim Lawyers’ Insurance team.