In this Alert, Associate Claire Bruggemann discusses the case of
Catherine Mary Hopkins v Department of Education &
Communities and the determination by the NSW Workers'
Compensation Commission that the claimant's injuries, sustained
at her residence, arose out of her employment.
The claimant was employed as a teacher with Cessnock High
School. On 14 June 2007 she left school at approximately 3.45pm and
arrived home at 5.30pm. She took books inside her home for marking,
using a cane basket to carry them. Whilst descending the steps of
her residence to retrieve more books, she slipped and fell
sustaining a right ankle pylon fracture.
Issue to be determined
The NSW Workers Compensation Commission was required to
determine whether the claimant sustained an injury arising out of
or in the course of her employment (section 4 of the Workers
Compensation Act 1987 (the Act)) and whether
her employment was a substantial contributing factor to her injury
(section 9A of the Act).
Injury arising out of or in the course of employment
The claimant submitted that the school's classrooms closed
at 5pm on a daily basis and that teachers could only work back past
5pm through special arrangements with the Principal.
She also submitted that she took work home on a daily basis
including work such as marking student work books and assignments,
preparation of lessons and teaching programs and preparing
The Commission accepted that it was part and parcel of the
claimant's employment that she comply "with
requirements not only of face-to-face teaching hours, but also
lesson preparation, marking, and evaluation of students, to name
but a few of the ancillary tasks performed by teachers".
This indicated an implied inducement to perform tasks outside of
the contractual hours of employment.
This inducement was further reinforced by the fact that the
school closed at 5pm daily which allowed teachers only one and a
half hours in the staffroom after the finish of the school day to
perform all ancillary tasks.
The Commission found that it was a necessary consequence of the
implied inducement that the claimant was required to transfer work
from her vehicle to her home.
Accordingly, it was held that her injury arose out of or in the
course of her employment.
Substantial contributing factor
The Commission noted that the claimant was obtaining items from
her vehicle when she was injured and because the claimant brought
these items home for the purposes of marking, they were related to
The Commission was satisfied that the claimant's employment
was a contributing factor which was real and of substance to the
Employers may be found to have impliedly induced employees to
work outside of the contractual hours of their employment if they
are not provided with sufficient time to complete all aspects of
their employment at the employer's premises. In such
circumstances, employees may be able to successfully claim
statutory compensation for injuries sustained at home whilst
engaged in activities related to their employment.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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