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Mandep Sarkaria v Workers' Compensation Regulator
[2019] ICQ 001
Key Points:
The entire premises of a workplace won't necessarily be
considered a worker's "place of employment."
A "place of employment" can change depending on the
work performed at that time.
"Ordinary recess" includes the pre-start time a
worker is at the place of employment.
Background:
The worker arrived at her employer's premises (a well-known
fast food outlet) at 8:50 pm, 10 minutes prior to the start of her
shift at 9pm, in accordance with her employer's policy. During
the 10 minute period before her shift, the worker climbed a three
metre ladder inside the storeroom to enable her to then climb up to
the roof of the premises to smoke a cigarette. As the worker
descended the ladder, she fell and broke her right leg.
The roof was not a designated staff smoking area. The ladder was
only to be used to clean the roof. There was a warning sign present
warning staff from accessing the roof. The worker had not sought
permission to go onto the roof. The worker had not actually
commenced her shift. As part of her work duties, the worker was
required to clean the roof on a monthly, two-monthly or
three-monthly basis.
At first instance, the worker argued that under section 34(1)(c)
of the Workers' Compensation and Rehabilitation Act 2003 (Qld)
('the Act') her injury occurred out of, or in the course of
her employment as the injury occurred while she was temporally
absent from her place of employment during an ordinary recess.
Section 34(1)(c) of the Act provides:
An injury to a worker is taken to arise out of, or in the
course of, the worker's employment if the event happens on a
day which the worker has attended at the place of employment as
required under the terms of the worker's employment while the
worker is temporarily absent from the place of employment during an
ordinary recess if the event is not due to the worker voluntarily
subjecting themselves to an abnormal risk of injury during the
recess.
The Queensland Industrial Relations Commission rejected the
worker's arguments and found that the roof and the ladder were
part of the worker's "place of employment" because
she used the ladder to access the roof to perform a part of her
duties to clean the roof on a monthly, two-monthly or three-monthly
basis.
The Commission also found that the 10 minute pre-start period
she was required to be at work was not an "ordinary
recess." This is because the worker had not started her shift
and there was no interruption to the worker's continuous period
of work.
On appeal, President Martin of the Industrial Court found that the
worker was temporarily absent from her place of employment
because:
The ladder was only supposed to be used to access the roof to
perform cleaning duties and only if she was authorised and
accompanied by a manager.
The roof and ladder would only become her place of employment
at that time if she was going to the roof to perform cleaning
duties and only if she was authorised to and accompanied by a
manager.
At the time of the incident, the roof and ladder were
restricted to the worker because there was no need for the worker
to clean the roof and she was not authorised to and accompanied by
a manager.
President Martin found that the worker sustained a work injury
because her pre-start smoke "break" meant she was
temporarily absent during an ordinary recess because:
The worker was required to be at her place of employment, by
her employer, 10 minutes before her shift commenced.
During this 10 minute period the worker and other staff would
not perform any work until their shift commenced.
If this 10 minute period was not regarded as an "ordinary
recess" it would be "inconsistent with the purposes of
the Act."
The appeal was allowed and compensation paid.
Lessons Learned:
Whether an area of the premises of an employer is considered a
"place of employment" for a worker depends on the work
duties of the worker at that time.
Any period of time before a shift that a worker is required, by
the employer, to be at the premises of the employer will be
considered to be an "ordinary recess."
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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