In the recent decision of Krleski v Simon Blackwood,
the meaning of 'day' and the impacts of that meaning were
examined.1 This decision was an appeal of the Deputy
President's decision from the Queensland Industrial Relations
In this Alert, Senior Associate Scott Macoun and Solicitor Abbey
Wilkinson discuss the case further.
The meaning of the word 'day' for the purposes of
section 34 of the Workers' Compensation and Rehabilitation
Act 2003 (Qld) (WCRA) is a period from one
midnight until the next.
This ordinary meaning of the word 'day' applies
regardless of the type or hours of work that a worker
The case involved a worker employed at the Daunia Mine, whose
work cycle was 10 days on and 4 days off, with ordinary working
hours from 6:30am until 5:00pm. Because of this work cycle and the
distance from the site to the worker's usual place of
residence, he was provided with accommodation at a workers'
village (operated separately to the mine) nearby.
On 12 April 2012 the worker undertook a normal work day,
returned to the village, had dinner, attended the gym and,
presumably, returned to his room. The worker was last seen at about
9:15pm that night. On the morning of 13 April 2012, a co-worker
arrived at the worker's accommodation to pick him up, but could
not wake him. It was not until the evening of 13 April 2012 that
the worker was seen again, when he was found passed out, having
suffered from multiple organ impairment and severe brain injury. No
evidence was available as to the likely cause of the worker's
Although it was not able to be determined as a matter of
certainty when the worker actually suffered the injury, based on
the information available, the Deputy President found that the
injury occurred sometime after 9:30pm on 12 April 2012 and before
4:30am on 13 April 2012.
In determining whether the worker could make a claim under the
WCRA, the Deputy President had to consider both sections 32 and 34
of the Act. The worker's injury did not fall within section 32
and it was therefore necessary for the court to determine if the
injury fell within an exception in section 34.
The meaning of the word 'day' was relevant to the
court's interpretation of section 34.
Section 34(1)(c) provides as follows:
"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 voluntarily subjecting themself to an
abnormal risk of injury during the recess' (our
As the worker sought to rely on section 34(1)(c), there were two
questions that the Deputy President needed to answer:
Did the event happen on a 'day' on which the worker had
attended the place of employment; and
If it did happen on such a 'day', did it occur while
the worker was 'temporarily absent from the place of employment
during an ordinary recess'.
Unsurprisingly the worker argued that a 'day' in his
situation should be regarded as each 24 hour period from the time
he commences work until he completes his cycle of 10 shifts
(presumably referring to the fact that he essentially stayed on
site and worked 10 days on 4 days off). The Deputy President did
not agree with the workers reasoning and adopted the ordinary
meaning of 'day', being the period that begins with one
midnight and ends with the next.
Therefore, the President (on appeal) confirmed the Deputy
President's decision was the correct one; that in the absence
of any evidence as to the time of the injury, the worker had not
discharged the onus of showing that the injury occurred on a day on
which the worker attended at the place of employment. In effect,
because the worker's injury may have occurred after midnight on
12 April 2012, and as he did not attend work on 13 April 2012, the
injury may have occurred on a day that the worker did not attend
The issue of whether there was a temporary absence (the recess
question outlined above) did not require consideration, as the
worker did not satisfy the first part of the test.
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.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).