​Injured before start of work hours: is compo due?

Cases

​Injured before start of work hours: is compo due?

A tribunal has ruled that a man who was injured between a car park and his employer’s shop, 15 minutes before work started, was entitled to compensation.

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A tribunal has ruled that a man who was injured between a car park and his employer’s shop, 15 minutes before work started, was entitled to compensation.

Stumble caused ankle fractures


A worker arrived early on 20 September 2016 at the shopping centre where he worked and parked his car in the staff car park. Taking a shortcut from the car park, he attempted to climb down a retaining wall into a laneway at the side of his employer’s store. However, he lost his balance and stumbled. He sustained multiple fractures to his right ankle.

When the worker applied for workers compensation, Return to Work SA rejected his application. It argued that he was not eligible because the laneway where he fell had not been his workplace, he had not been required to drive a car to work, and he had been injured 15 minutes before he was due to commence work.

Legislation


Under the Return to Work Act 2014 (SA), certain attendances are deemed to constitute employment. They include attending before the start of work in order to prepare, or be ready, for work. The ‘place of employment’ is defined as ‘a place where a worker is required to carry out duties of employment and, if the place is a building, includes land within the external boundaries of the land on which the building is situated’ (section 4).

The issue


The issue before the South Australian Employment Tribunal was whether the injury had arisen out of or in the course of employment. Had the place of the injury counted as the place of employment and had the worker been there to prepare or be ready for work?

Considerations


Deputy president Gilchrist established that the lease between the employer and the shopping centre granted shop owners property rights to the car park and the laneway. It was therefore acceptable to regard the place of the worker’s injury as falling within the boundaries of his place of employment according to the extended definition in the Act. It was also clear that the worker had arrived early that morning in order to prepare or be ready for work. Consequently, his injury was compensable and the decision of Return to Work SA to reject his claim was set aside.

The parties had not addressed the amount of compensation, and deputy president Gilchrist adjourned consideration of this issue in order for the parties to attempt to reach agreement.

The bottom line: This case shows that the courts will adopt a broad approach to interpreting safety legislation. Even though a particular organisation may not own or control a particular piece of land, if one of the organisation’s workers is on that land for a work-connected purpose then liability may be found. Some practical considerations therefore arise. Potential liability for situations over which there is no control demands that an organisation has good insurance. WHS managers may need to notify senior managers/directors of potential safety risks to workers that are physically outside of their control so that those more senior managers can then liaise with third parties to eliminate or control the risk and the legal liabilities. Individual workers may need to be educated, be made subject to administrative controls and be given workplace instructions to identify/avoid/manage risks on the way to work.

Read the judgment


B v Return to Work SA [2018] SAET 85 (11 May 2018)
 
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