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, August 2017

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.

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Hilary Uhr
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