INDUSTRIAL COURT OF QUEENSLAND

Transcription

1 INDUSTRIAL COURT OF QUEENSLAND CITATION: PARTIES: FILE NO/S: PROCEEDING: Mandep Sarkaria v Workers Compensation Regulator [2019] ICQ 001 MANDEP SARKARIA (appellant) v WORKERS COMPENSATION REGULATOR (respondent) C/2017/19 Appeal DELIVERED ON: 14 January 2019 HEARING DATE: 19 February 2018 JUDGE: ORDER: CATCHWORDS: Martin J, President 1. The appeal is allowed. 2. The orders of the Commission are set aside and, in their place, the following orders are made: The appeal to the Commission is allowed The Respondent s decision of 23 February 2017 is set aside and, in lieu thereof, it is ordered that the application for compensation of 3 November 2016 be accepted WORKERS COMPENSATION ENTITLEMENT TO COMPENSATION EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE SCOPE OF EMPLOYMENT INTERRUPTION TO CONTINUITY OF EMPLOYMENT RECESSES WHAT CONSTITUTES ORDINARY RECESS - where appellant attended her place of employment before shift commenced per the terms of her employment where appellant was injured during that time before her shift commenced where appellant was injured by climbing a ladder that gave access to and from the rooftop of the place of employment where the rooftop was not a designated area for breaks where the appellant had no permission, nor express or implied encouragement, from the employer to either use the ladder, or use the ladder to access the rooftop whether the injury occurred on the day on which the appellant had attended her place of employment as required by the terms of her employment whether the injury happened during an ordinary recess 1

2 CASES and LEGISLATION: COUNSEL: SOLICITORS: Workers Compensation and Rehabilitation Act 2003, s 34(1) Bird v Commonwealth (1988) 165 CLR 1 Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 Landers v Dawson (1964) 110 CLR 664 WorkCover Queensland v Dreadon [1999] QIC 47 M Forbes for the appellant P Rashleigh for the respondent Quinn & Scattini for the appellant Workers Compensation Regulator (direct instruction) Introduction [1] On 1 November 2016 Mandep Sarkaria attended for work at the McDonald s Restaurant at Richlands. In accordance with the policy imposed by her employer, she arrived 10 minutes before her shift was to commence at 9 pm. In that 10 minute period preceding the start of her shift, she 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, as she descended the ladder, she fell and broke her right leg. [2] Her appeal against WorkCover s rejection of her compensation claim was dismissed on the basis that she had not established that: she was temporarily absent from her place of employment, she was on an ordinary recess at the time of her injury, and that her employment was a significant contributing factor to her injury. The background to the application [3] The parties had agreed on a number of facts and the Vice President made a number of findings. So far as is relevant, they may be summarised in the following way: the appellant attended at the premises at about 8:50 pm in accordance with the employer s policy, before commencing her shift, the appellant went to the store room of the premises in which there was a 3 m ladder which afforded access to the roof of the premises, 2

3 (d) (e) (f) (g) (h) (i) (j) she used the ladder to get onto the roof and she then smoked a cigarette, as she was descending the ladder, she fell and broke her right lower leg, at the time of sustaining the injuries she had not actually commenced her shift, the rooftop was not a designated smoking area for staff, the appellant did not seek permission to go on to the rooftop, there was no encouragement by the employer, either express or implied, for the appellant to be on the rooftop at that time, at the relevant time, there was a sign on the ladder warning against going onto the rooftop, and the ladder was used by managers and other staff to undertake cleaning duties on the rooftop on a regular basis. The argument below [4] In the Commission, the appellant argued that: her injury fell within s 34(1) of the Workers Compensation and Rehabilitation Act 2003 (the Act), or her injury arose out of, or in the course of, her employment within the meaning of s 32(1) of the Act. [5] Both of those contentions were rejected. The legislation [6] So far as is relevant, s 34(1) provides: (1) An injury to a worker is taken to arise out of, or in the course of, the worker s employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker s employment while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker 3

4 voluntarily subjecting themself to an abnormal risk of injury during the recess. (2) For subsection (1), employment need not be a contributing factor to the injury. [7] The term place of employment is defined in Sched 6 of the Act in this way: place of employment means the premises, works, plant, or place for the time being occupied by, or under the control or management of, the employer by whom a worker concerned is employed, and in, on, at, or in connection with which the worker was working when the worker sustained injury. Ground of appeal [8] The only ground argued was that the Vice President erred in not holding that the injury fell within s 34(1) of the Act. Section 34(1) [9] The requirements of s 34(1) are that: (d) the event happened on the day on which the worker had attended at the place of employment as required under the terms of that worker s employment, the event happened while the worker was temporarily absent from the place of employment, the event happened during an ordinary recess, and the event was not due to the worker voluntarily subjecting him or herself to an abnormal risk of injury during the recess. [10] The Vice President held that, while the appellant had satisfied the requirement referred to in above, she had failed to demonstrate, and, although it is not completely clear, (d). Was the appellant temporarily absent from the place of employment? [11] The Vice President held that both the rooftop and the ladder were part of the appellant s place of employment within the meaning of the Act. The appellant argues that while the rooftop was part of the premises and under the control of the employer, it does not necessarily follow from this that the rooftop was the appellant s place of employment. [12] There are two broad concepts which make up the place of employment as defined in the Act. 4

5 [13] First, there is the involvement of the employer. In this case it was accepted that the employer could restrict access to the roof. The word premises is very broad and should be taken to include all parts, including the roof, of a building. Thus, the roof was under the control of the employer. [14] Secondly, the definition requires that they be in, on, at, or in connection with which the worker was working when the worker sustained injury. [15] This definition was considered by Moynihan AP in WorkCover Queensland v Dreadon 1. In that case, the worker had finished his shift and was walking to the car park. As he arrived at his vehicle, he was approached by a person who assaulted him by hitting him with a baseball bat. There was no dispute that the car park in which the assault occurred was under the control or management of the worker s employer. With respect to the second element of the definition referred to above, his Honour said: The second requirement of the definition indicates that not every piece of land or property occupied or under the control or management of the employer is necessarily every employees place of employment. 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. Whether there is a connection is relative to the nature of employment. The car park where the injury occurred is conceded by the parties to be under the control of the employer. However it cannot be said that the car park is a place in connection with which the worker was working when he was injured. The respondent was employed by Australian Meat Holdings Industry as a knife hand. At the time of the injury, the respondent had completed his work for the day and had walked to his car in the car park in order to travel home. The carpark is merely a facility supplied by the employer for the use of the employees. On a different set of facts, it may be that the car park could be characterised as the place of employment. For example, if an employee had duties which included maintenance of the car park. [16] Whether a part of the premises of an employer can be considered a place of employment can vary according to the type of work being performed. Seasonal work might, for example, mean that some part of a building or a plant could be a place of employment for part of the year but not for another part of the year. [17] The argument for the appellant was encapsulated in these paragraphs of her written submission: 1 [1999] QIC her Honour found that: the rooftop was not a designated smoking area for staff at the Restaurant; the Appellant did not seek permission from any manager to go on to the rooftop; there was no encouragement by the employer, either expressly or impliedly, for the Appellant to be smoking on the rooftop on the date of the incident; there was in fact a warning sign on the ladder which restricted access to the rooftop; and there was no need for the Appellant to access the rooftop other than when performing cleaning duties, and then only if she was authorised and accompanied by a manager (which was not the case on[the] night of the incident). 5

6 14. Put simply, her Honour s factual findings give rise to the inescapable conclusion that on the night of the incident the rooftop was an area that was restricted to the Appellant. That being the case, one might rhetorically ask how an area that was restricted to the Appellant could at the same time also be her place of employment? 15. According to her Honour, the answer to this question appears to lie in the fact that the Appellant would occasionally perform cleaning duties on the rooftop on a monthly, two-monthly or three-monthly basis. But just because the Appellant would occasionally perform cleaning duties on the rooftop, this does not mean that the rooftop permanently became her place of employment. Plainly that was not the case, because if the rooftop was the Appellant s permanent place of employment then she would have had ongoing and unrestricted access to it. [18] A matter which did not receive a lot of attention, either below or on appeal, was the actual site of the occurrence of the injury. The appellant was not injured on the roof. She was injured when she slipped while descending on the ladder from the roof to the storage area. But, the appellant would not have been on the ladder had she not ventured on to the roof. [19] Resolution of this issue can be reached by employing the test as set by Moynihan AP in Dreadon: 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, thus, whether there is a connection is relative to the nature of employment. [20] The appellant s employment did include cleaning the roof on a regular basis. But, that duty was circumscribed. There was evidence which the Vice President seems to have accepted that there was no need for the appellant to access the rooftop other than when performing cleaning duties and then only if authorised and accompanied by a manager. There was also the finding by the Vice President that there was a warning sign on the ladder at the time of the incident. Those two findings support the conclusion that the roof and the ladder were not within the place of employment at the relevant time. [21] The nature of the appellant s employment is not in the same category as that which was contemplated by Moynihan AP in Dreadon. He gave an example of a car park being able to be categorised as the place of employment if, for example, an employee had duties which included maintenance of the car park. In doing that, he was not referring to a circumstance where an employee could only use the car park for maintenance purposes with the authority of, and when accompanied by, a manager. Nor did his example include the circumstances of a sign warning against entering the car park. [22] The roof of the employer s premises in this case would not ordinarily be the place of employment. The definition of that term places some temporal condition in that it refers to the premises in which the worker was working when the worker sustained 6

7 injury. On the findings made by the Vice President, the roof and the ladder which was only used to gain access to the roof, would only be a place of employment when maintenance or cleaning was being performed on the roof. The appellant has demonstrated that the Vice President erred by concluding that the rooftop and the ladder were within the appellant s place of employment. Did this occur during an ordinary recess? [23] The term ordinary recess is not defined in the Act but it has been the subject of consideration in a number of cases. [24] In Landers v Dawson, 2 Kitto, Taylor, Menzies and Owen JJ said: 3 By s. 8 (2), an injury is to be deemed to arise out of or in the course of his employment if the injury occurs while the worker on any working day on which he has attended at his place of employment pursuant to his contract of employment, is present at his place of employment or having been so present, is temporarily absent therefrom on that day during any ordinary recess and does not during any such absence voluntarily subject himself to any abnormal risk of injury. On this aspect of the case, the question is whether, on the facts as found, it was open to the Board to hold that when he was injured the appellant was temporarily absent from his place of employment during an ordinary recess. The Full Court (Lowe, Dean and Pape JJ) was of opinion that that ultimate finding was not open. Their Honours referred to and relied upon Drummond v Drummond (1960) VR 462 in which it was said[at pp ] that s. 8 (2) was intended to cover injury sustained during a break in work, such as for morning or afternoon tea, or lunchtime, or a 'smoko' or similar break normally referred to as a 'recess'... The word 'recess' in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea, or 'smoko'. It is a period of rest incidental to a period of labour in its general acceptation. The recess is something in the nature of an interval between two or more periods of work in the normal day. With that statement we agree and, indeed, counsel for the appellant made no criticism of it. His submission was that, as applied to the facts of the present case, the interval between the last delivery of bread at Peterborough and the time after lunch or in the afternoon when the appellant would have been required to begin his work mixing dough could properly be regarded as a recess of the kind to which the judgment in Drummond's Case (1960) VR 462 referred. The argument seemed to us to proceed upon the basis that since the appellant was available for duty for twenty-four hours of the day, any break in that period, whether for sleep or food or for activities such as swimming, was a recess and that, if allowed as often as the appellant's swimming at Peterborough was allowed, it was an ordinary recess. But that, we think, is unsound. The appellant was not working a continuous twenty-four hour day interrupted by relatively short breaks for refreshment or relaxation. During the substantial intervals of the day and night when 2 (1964) 110 CLR At

8 he was not required to work, his time was entirely his own. He was off duty and could use his off duty periods for any purpose that he thought fit. The only effect of his getting the respondent's permission to go swimming was that a period was defined within which he would not be expected to be available for work at the bakery. It is unnecessary to attempt to define exhaustively the meaning of the words ordinary recess in the context in which they appear in the Act; it is sufficient to say that we agree with their Honours in the Full Court that the appellant's injury could not reasonably be held to have occurred during an ordinary recess. (emphasis added) [25] Since that decision other courts have applied similar reasoning but, in each case, the work to be done by the term ordinary recess bends to accommodate the particular fact situation. [26] There are two matters which bear upon the proper application of that term in this case. [27] First, there is the general rule of interpretation applied to statutes of this kind. The Act is properly described as being beneficial legislation. 4 As such, it should be construed so as to give the fullest relief which the fair meaning of its language will allow. 5 [28] With that in mind, I turn to the second matter which is relevant. While the appellant was required to attend at her place of employment 10 minutes before her shift was to commence, there was no work for her to do in that 10 minute period. The Vice President held that the appellant s injury did not occur during an ordinary recess - she said: [81] The Appellant had not commenced work on 1 November 2016 when she was injured. There was thus no interruption to an otherwise continuous period of work. The injury to the Appellant did not occur during an ordinary recess. [29] In Landers v Dawson the High Court made it clear that they were not attempting to exhaustively define the meaning of the words ordinary recess. On the facts of this case, it was an ordinary consequence of the employer s requirement that employees attend at the workplace a set time before the shift started and that there was for each such employee a recess between the time required to attend at work and the commencement of the work period. [30] Although none of the employees at the restaurant would serve a customer, or cook food, or lift a mop from the time they arrived until their shift commenced they had, in my view, commenced work. Their presence at the place of employment at a fixed time before their shift commenced meant that the people they were replacing could leave in a timely way at the end of their shift and there would be no disruption to the efficient conduct of the enterprise. [31] The words used in s 34(1) refer to a temporary absence from the place of employment during an ordinary recess. The term ordinary recess is not qualified in any way. It is 4 Bird v Commonwealth (1988) 165 CLR 1, 9. 5 Khoury v Government Insurance Office (NSW) (1984) 165 CLR

9 preceded, though, in s 34(1) with the condition that the worker has attended at the place of employment as required under the terms of the worker s employment. The effect of the decision below is that an employee who is required to attend at the place of employment before a shift or other period of work commences will not be afforded any protection under s 34 if that worker is injured in the period before the shift commences. That, with respect, seems to be inconsistent with the purposes of the Act. [32] In the circumstances of this case, the period of time during which an employee was required to attend at the place of employment before a shift commenced should properly be regarded as an ordinary recess for the purposes of s 34 of the Act. [33] It follows that the appellant has demonstrated that the Vice President erred with respect to each element the subject of this appeal and that the appeal should be allowed. Orders 1. The appeal is allowed. 2. The orders of the Commission are set aside and, in their place, the following orders are made: The appeal to the Commission is allowed The Respondent s decision of 23 February 2017 is set aside and, in lieu thereof, it is ordered that the application for compensation of 3 November 2016 be accepted I will hear the parties on costs. 9