A plaintiff who was between contracts with Victoria University
was held to be an "employee" allowing him to claim
statutory benefits for a heart condition.
On 28 April 2003 the plaintiff had entered into contract of
employment with the defendant which was not to commence until 7 May
2003. On 30 April, whilst undertaking research at the
defendant's library, the plaintiff suffered a heart attack
which was subsequently diagnosed as a 'dissecting aorta',
necessitating his absence from work for the foreseeable future.
The defendant denied compensation on the grounds that the injury
occurred at the time when the plaintiff was not an employee of the
defendant and that the act of researching was not incidental to his
employment as it was conducted without remuneration.
The plaintiff submitted the he was in the course of employment
as the act of research was an activity expected of him as outlined
in the position description within the contract of employment.
The Court was faced with two issues. Namely:
Whether at the time of the injury the plaintiff was a worker
within the definition of Section 5 of the Accident Compensation Act
(The Act), and;
Whether at the time of the injury the plaintiff's conduct
amounted to act "within the course of employment."
In determining the first issue, His Honour Judge Bowman referred
to Section 5 of the Act which states:
"Worker means....a person....who has entered into or works
under a contract of service....whether the contract is express or
implied, is oral or is in writing"
His Honour held that notwithstanding that it was "...
possible that a contractual arrangement such as the one in the
present case had not been anticipated by the legislature" it
is "... indisputable" that the plaintiff is a "...
person who has entered into a contract of service."
His Honour further held that in order to be deemed a worker
within the meaning of the Act, it was unnecessary for the plaintiff
to have commenced work to the extent of "... picking up tools
and striking a blow" and that it was not "...mandatory
that works be performed under that contract".
Regarding the second issue, His Honour referred to the judgment
of Adam J in Park v Peach who held that to determine that if
plaintiff's conduct is within the course of employment, the
activity the plaintiff was engaged in must've been sufficiently
connected to employment. In this case, notwithstanding that the
activity also assisted the plaintiff's professional
development, the activity was deemed to be "...
belonging" to the employment.
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.
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.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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”
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).