An assault that occurred at an on-site tavern in the
middle of a worker's two week shift arose out of, or in the
course of the employee's employment.
Facts - Westrupp v BIS Industries Limited  FCAFC
The Claimant, Mr Edward Westrupp, was a 61 year old FIFO worker
employed by BIS Industries as a silo operator to work in Leinster
(Leinster is a company town, operated by BHB Billiton). The
Claimant worked two weeks on, one week off roster. During his two
weeks on, he resided at the Leinster Mining Camp. His actual home
was in a suburb in Auckland, New Zealand.
Leinster is a closed town and all BIS Industries employees who
were accommodated in the town were subject to the Leinster Township
and SPQ Village Rules. Supplied for the employees were camp rooms,
a tavern, gym, swimming pool, basketball, squash and tennis courts.
The Village rules dealt with employee conduct while in areas such
as the tavern and in the town.
The Claimant's shift arrangements were such that on the
first week of his two week shift, he worked day shift, and then 24
hours after his final day shift, he commenced night shift for a
week. The assault occurred on the evening of his final day shift,
in the middle of his two week shift period.
The circumstances of the assault were that on the evening of 26
March 2014, the Claimant recognised a woman he had known since
2006. The woman stood up and hugged the Claimant, during which
another patron (the assailant, also an employee of BIS Industries)
spoke aggressively to the Claimant. The Claimant however, walked
A short time later, the Claimant was speaking to some friends
when the assailant approached him and assaulted him. Consequently,
the Claimant suffered a right shoulder injury.
The Claimant's claim was rejected by BIS Industries on 26
May 2014 and on 23 June 2014. The decision to reject the
Claimant's claim was affirmed by a Reconsiderations Officer
from an independent reviewer. The Claimant sought review by the
AAT, however, the AAT affirmed the decision made by the
Decision of the Full Court of the Federal
The Court held that there was neither a suggestion nor a finding
that the Claimant was at any time in breach of the code of
behaviour or any of the Village rules.
The Court found that it was an indication of the degree of
direct control retained by BIS Industries over both the Claimant
and the assailant for the duration of the time they spent in
Leinster that their conduct was investigated by BIS Industries and
that the assailant was found to be in breach of the code of
Furthermore, BIS Industries expected workers to be properly
rested when they commenced night shift the following day. The
evidence of the Claimant was that accordingly, BIS Industries
encouraged staff not to drive at night unless necessary. The
Federal Court held that the Claimant was therefore induced to be at
the camp during his swing shift. The Court held that an argument
that the incident occurred between two discrete shifts or periods
of work was flawed; the Court said that the injury occurred in an
interval in an overall period of work. To say otherwise took no
account of the "fly in/ fly" out nature of the
The Federal Court further held that there was no reason in the
present case to regard the tavern as a place unconnected with
Employers need to be mindful that an injury sustained by an
employee during an interval or interlude in an overall period of
work can constitute an injury arising out of, or in the course of
the employment. This is especially in circumstances where the
employer provides facilities for the employee's use, encourages
the employee to use those facilities and the employee's conduct
remains governed by the employer's code of conduct during that
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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