In another decision which broadens the definition of
what is deemed to be connected to employment, on 4 December 2015 in
the case of Westrupp v BIS Industries Limited  FCAFC
173, the Full Court of the Federal Court of Australia ruled in
favour of an employee claiming workers' compensation from an
assault outside a local tavern.
The employee, Mr Westrupp, was employed as a fly-in fly-out
worker and was physically assaulted between two shifts. The injury
occurred outside a tavern in Leinster, Western Australia; a town
which exclusively housed workers of the employer. Although the
attacker was a co-worker of Mr Westrupp, neither party were engaged
in any work duties at the time.
Mr Westrupp had previously submitted a claim for workers'
compensation which was rejected by both the primary insurer and the
Administrative Appeals Tribunal on the basis the assault could not
be said to 'arise from, or in the course of,
employment'. Critically in this assessment, the Tribunal
applied the reasoning of Comcare v PVYW (2013) 250 CLR 246 in
finding the establishment and provision of the tavern alone did not
create a liability on the employer "for everything that
occurs whilst the employee is present at that place or
In exercising its appellate jurisdiction, the Full Court set
aside the decision of the AAT and found Mr Westrupp's assault
was compensable. In reaching this decision, the Court applied
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 on
the basis the subject injury occurred at, or in reference to, a
'place' which Mr Westrupp was encouraged or induced by the
employer to attend.
At the outset the Court rejected the AAT's point of
reference as the tavern, ruling that the appropriate determination
of 'place' was the town of Leinster itself. Such
distinction was crucial in the Court's decision, as the nature
of Mr Westrupp's employment clearly assumed and provided for
his presence in the town. This conclusion was based upon a number
of factors including; that he would not have been in the town but
for the employment; he was under the employer's control at all
times in the town; he was subject to the employer's code of
behaviour during the entirety of the two weeks; and it was
reasonable that he would use town facilities during his stay.
It was on the basis of the employer's inducement of Mr
Westrupp to reside in the town that rendered all times between
shifts as intervals within the overall two-week period of work.
This created a sufficient link to his employment for the
workers' compensation claim.
Although this case explores the liability of employers for
fly-in fly-out workers, it has broader implications for any
employment situation in which the employee's whereabouts
outside of work may be influenced by the employer. While Queensland
claims have the further threshold requirement that employment be a
'significant contributing factor' (for physical injuries)
or 'major significant contributing factor' (for psychiatric
or psychological disorders), the broad interpretation arguably
places a burdensome duty upon employers (such as Local Councils)
with rural or remote job locations requiring accommodation or other
facilities for its staff.
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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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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