Injury Outside Work Hours: Employer Inducement Remains a Key Factor for Compensation15 January 2018
A court has ruled that a worker’s belief that her employer expected her to attend the workplace was not enough to make her injury compensable. This occurred after the worker was sent reminder emails to complete forms for the employer, attended the workplace on a rostered day off to complete the forms, and was injured in the process.
In April 2014, the worker had decided to go into the hospital where she was employed on her day off to complete an overdue graduate evaluation form, after having difficulties doing so on her home computer. She subsequently suffered an injury as she attempted to sit on a chair and missed it completely, sustaining an injury in the process. The employer denied liability.
At first instance, Arbitrator Nunn found in the worker’s favour. The Arbitrator deemed that the worker’s act and subsequent injury was reasonably incidental to her employment and that she was encouraged to attend work and complete the form. In doing so, the Arbitrator focussed on the fact that the employer sent two reminder emails which emphasised the importance of returning the form.
The Arbitrator agreed with the employer in reasoning that the worker should not have moved throughout the hospital outside of her employment hours, but also focussed on the external difficulties that the worker faced in attempting to complete the form.
On appeal, Western Australian District Court Judge Ronald Birmingham found that the previous decision in the employee nurse’s favour was incorrect, applying flawed reasoning at arriving at the ultimate outcome.
The Judge highlighted the error in over emphasising the subjective pressure the worker felt to attend the workplace. He said the original reasoning focussed on “the subjective intention rather than on the duty or activity that was said to be required, induced, expected or authorised by the employer.”
The employer argued that it had not “required, induced, encouraged, expected or authorised” the worker to attend work. The employer noted that it was unaware of her attendance, and the injury could not be said to have been sustained in the course of employment.
In agreeing with the employer, Judge Birmingham cited Hatzimanolis v ANI Corporation Limited  HCA 21 and Comcare v PVYW  HCA 41, which established the principle for the employer to have “required, induced, authorised, expected or encouraged the worker to spend the particular time in a particular way“. Given the absence of such, the Arbitrator’s reasoning in the original decision constituted a misapplication of law which focussed on the worker’s own beliefs rather than the objective act of the employer.
For the injury to occur in the course of employment, it is not sufficient to show that the employer “required, induced, authorised or encouraged the particular outcome irrespective of the question of when and how it is to be achieved“. Here, the worker made the decision to attend the workplace herself, and chose the time, place and manner of doing so.
Despite the fact that the Court eventually found in the employer’s favour, this serves as a timely reminder of the importance of ensuring that adequate risk management procedures are put in place to ensure consistent implementation of procedures regarding safety and adequate supervision. Employers should be careful with instructions to their workers and keep a broad, cover all approach to maintaining injury free workplaces to the greatest extent possible.