Australia: WorkCover not liable for teachers fall during work-approved activity

Last Updated: 6 April 2017
Article by Rachel Drew and Hilary Uhr

Most Read Contributor in Australia, July 2018

Byrnes v Workers' Compensation Regulator [2017] QIRC 001

The Queensland Industrial Relations Commission (QIRC) has dismissed an appeal against the decision of the Workers' Compensation Regulator that an injury sustained by a teacher while attending a union event during ordinary paid hours did not arise out of or in the course of her employment.

Lynette Byrnes, a high school teacher and member of the Independent Education Union Australia, Queensland and Northern Territory Branch (the Union), fractured her shoulder when she fell while attending the Union's Council, Executive, and Annual General Meetings. The injury occurred on a Friday, a day Ms Byrnes would ordinarily have been teaching. Ms Byrnes had sought and received the permission of her employer, Brisbane Catholic Education (BCE), to attend the Union meetings.

Ms Byrnes required surgery on her shoulder. She lodged an application for compensation with WorkCover, which was rejected. On review to the Workers' Compensation Regulator, the claim was again rejected.

On appeal before the QIRC, witnesses for the Union gave evidence of a long standing arrangement between the Union and BCE, dating back to 1993. The arrangement enabled employees who also held positions on the Union's Council and Branch Executive to be released from their duties on a number of days every year, while still being paid ordinary wages by BCE. BCE would arrange a replacement teacher to cover the Union member's classes, and would invoice the Union for the cost of hiring that replacement. The Union reimbursed BCE. The Appellant made the case that the payment of ordinary wages by BCE set this particular absence apart from other types of leave.

Ms Byrnes had attended such meetings under this arrangement for 11 years without incident.

The established authorities state that a worker may be compensated for an injury sustained in the course of activities that are incidental to service:

  • a worker's employment includes not only acts which the worker is required to do under the contract of employment, but also acts which, although not required, may be authorised or allowed (ANI Corporation Ltd v Hatzimanolis (1991) 23 NSWLR 125, cited with approval by Toohey J in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 472), and
  • regard must be had to the general nature and circumstances of the employment and not merely the circumstances of the particular occasion out of which the injury arose (Comcare v PVYW (2013) CLR 246).

It is also established law that a worker may be compensated for an injury sustained during an interval in a period of work:

  • an injury occurring in an "interval" in an overall period or an episode of work will be compensable where the employer has authorised, encouraged or permitted the employee to do a particular thing or attend a particular place (Hatzimanolis, joint judgement of Mason CJ, Deane, Dawson and McHugh JJ at 482).

Before the Commission, Counsel for Ms Byrnes approached the appeal on two bases:

  1. Attendance at the Union meetings was an activity in the course of Ms Byrnes' employment, because the employer expressly permitted and authorised Ms Byrnes' attendance; and
  2. Alternatively, if the Commission did not accept the first proposition, Ms Byrnes' attendance could be treated as an "interval case", whereby the facts demonstrated that the employer had authorised, induced and encouraged Ms Byrnes' attendance at the meeting.

BCE argued that:

  1. The arrangement between the Union and BCE was for the benefit of the Union, not BCE, and that BCE simply acquiesced to Ms Byrnes' request to attend;
  2. That if the case was considered to be an "interval case", then Ms Byrnes' managers did not induce or encourage Ms Byrnes to attend and had no knowledge of or control over the activities Ms Byrnes was participating in; and
  3. If the Commission accepted that the event occurred in the course of employment, then Ms Byrnes' employment was not a significant contributing factor to her injury, because the activities were not linked to her ordinary duties at all.

In dismissing the appeal, Commissioner Thompson accepted BCE's submissions that Ms Byrnes' release to attend the Union meetings was a show of "good faith" by the employer, as the employer had done since 1994.

On the question of whether or not Ms Byrnes' injury occurred during an activity done in the course of her employment, Commissioner Thompson held that the activities undertaken on 30 October 2015 were not reasonably incidental to her employment. The appeal failed on the Appellant's first argument.

The Commissioner also rejected Ms Byrnes' second proposition that the injury was compensable as an "interval case". Commissioner Thompson held that the employer had simply "facilitated" her leave of absence, and had not induced or encouraged her to attend the meetings. The appeal also failed on this point.

Interestingly, the Commissioner quoted the Macquarie Dictionary definition of "encourage", which includes "to stimulate by assistance, approval, etc" and then stated at [225] that the actions of the employer, in complying with the terms of the longstanding arrangement between it and the Union "may have had the effect of "stimulating" the attendance by approval but falls short of inducement".

Ms Byrnes has filed an appeal in the Industrial Court of Queensland.

The significance of the decision

The decision has potentially wide reaching consequences for union and non-union members alike, in the event that an employee is injured in the course of activities which they understand to be part of their employment. This case makes clear that there remains some legal uncertainty when it comes to liability under workers' compensation policies.

There is also a lot at stake for WorkCover and other insurers if the appeal is successful, because it would clarify (or extend, depending on one's point of view) the scope of an employer's liability for work-related injuries, particularly where the activity appears to bear some connection to the employment but is not the same activity as ordinarily carried out.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Hilary Uhr
 
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”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
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).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions