In certain circumstances a worker does not need to be at work to
suffer a work-related injury where the employer has induced or
encouraged the employee to do the very act the employee was dong
when they were injured.
Mr Ziebarth was employed as a Fleet Service Manager with
Blenners Transport. He alleged he suffered a work-related injury to
his lower back on 21 March 2013 as a result of slipping on wet
tiles at home trying to answer his work telephone.
Mr Ziebarth said he was showering when he heard his work mobile
phone ringing on his bedside table. He said he moved out of the
shower, slipped on wet bathroom tiles, and fell forward.
Mr Ziebarth said that he had been reprimanded in the past by his
supervisor for not answering his work mobile while on call and felt
obliged to answer it as soon as it rang. He was later diagnosed
with a disc protrusion.
The Commission referred to the decision of Campbell v
Australia Leisure & Hospital Group Pty Ltd & Anor
(2015) ICQ 016 where it was held that for the injury to be in
the course of employment, the employee must be doing the very thing
that the employer induced or encouraged the employee to do, when
the injury occurred.
Therefore, the Commission had to make a determination as to what
was the activity Mr Ziebarth was engaged in at the time of the
incident and whether his employer induced or encouraged him to
undertake that activity.
The Commission determined that the activity Mr Ziebarth engaged
in at the time of the incident was answering the work phone, and
not running, as alleged by the Regulator. The Commission further
determined that Mr Ziebarth was induced and encouraged to answer
the work mobile. The Deputy President noted that under Mr
Ziebarth's work contract he was to be on call from time to time
and he was given a mobile phone for work duties while on call.
This case is a prime example that a worker does not need to be
at work to suffer a work-related injury. A number of employers in
various industries provide their workers with work phones. It is
therefore important to be very clear about expectations in relation
to the use of work phones. This case is also a good reminder of
what you induce or encourage your employees to do, either at work
or outside of work.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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