Are employers liable for employees injured during sporting or social activities?

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Are employers liable for employees injured during sporting or social activities?

Is an employer liable to pay workers compensation to an employee who is injured undertaking sporting or social activities? The answer depends on whether the sporting or social activities were undertaken in the course of the worker's employment - and a range of circumstances may determine whether this was the case.

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Is an employer liable to pay workers compensation to an employee who is injured undertaking sporting or social activities? The answer depends on whether the sporting or social activities were undertaken in the course of the worker's employment - and a range of circumstances may determine whether this was the case.

In addition, minimising risks associated with workplace sporting events is no different to managing any other occupational health and safety issue. The risk management approach should be adopted by identifying the hazards, assessing the risks and eliminating or controlling the risks.

In most jurisdictions in Australia, the definition of injury refers to it occurring in the course of the worker's employment. For example, sec 4 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) defines an injury as '...personal injury arising out of the course of employment...'. Section 9 of the Act requires an employer to pay compensation whether the injury was received by the worker at or away from the worker's place of employment. If a worker is injured during a lunchtime social sporting activity, it would need to be determined if the competition is work-related and whether the employment was a substantial contributing factor to the injury.

An activity will be work-related if the worker has been directed/requested to participate or the employer has encouraged or induced the worker. A company cannot contract out of the provisions of the Workers Compensation Act, so it would be up to its insurer to determine liability based on whether it is a work-related event and associated with employment.

Section 11 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) extends cover to injuries while the worker is temporarily absent from the workplace during any ordinary recess (one of the normal breaks during one continuous period of work) or any authorised absence. Depending on the circumstance, if a worker was to injure themselves while at a fitness centre during lunch time then they may be entitled to workers compensation. However, entitlements may be denied if there is proof that the worker voluntarily subjected himself or herself to any abnormal risk of injury. Again liability would need to be determined by the insurer based on the circumstance.

Sporting and leisure activities

Comcare, the Commonwealth public sector workers compensation agency, has prepared a circular on whether sporting activities are compensable.

This circular is a useful guide to the principles which guide courts in determining the relationship between employment and sporting/social activities.

For Commonwealth public servants, the situation is clear if an injury occurs as a result of sporting or social activities which take place during normal break times (eg lunchtimes): such an injury is generally compensable. However, if an injury occurs as a result of an activity which took place outside of normal work hours or break times, then it will usually only be compensable if a connection can be proved between the person's employment and his or her injury. The circular states:

'Whether the employer encouraged the employee to undertake a particular activity or to be present at a particular time and place will be taken into account'.

The example is given of certain types of jobs which require physical fitness, for example, emergency services personnel; defence forces personnel; police and so on. In such a case, where an injury occurs during sporting activity, then it could be argued that there is a connection between the employee's employment and the injury. (In support of this, the Defence Force policy on participation in sport recognises the need for physical fitness and Australian Defence Force members who have written authorisation to participate in sport are deemed to be on duty and therefore covered for workers compensation (Defence Instruction 'DI(G) PERS 14-2').)

Issues such as level of employer support; where the activity was conducted; when the activity was conducted; and the nature of, and requirements of, employment are taken into account.

Employer support

The Comcare circular notes that the courts have considered the following matters to be indicators of employer support and therefore an indicator of the activity taking place within the course of employment:

  • attendance of senior executives at the activity/function to give support;
  • use of the employer's name (eg naming a sporting team);
  • organising sporting activities during work time;
  • authorised use of work facilities (eg meeting rooms, telephone, fax) to organise the activity;
  • providing transport for attending sport;
  • organising or paying for the activity or function;
  • conducting the activity on the employer's premises.
When the event occurred

Sporting or leisure activities conducted during lunch times or breaks during the normal working day are generally are more likely to be covered for compensation purposes than activities conducted on weekends or after hours. However, an activity conducted on a weekend which has a strong level of employer support (for example, a 'corporate' triathlon where employees are encouraged to represent their employer, or an employer-sponsored cultural event for which tickets were provided to nominated staff) would be considered to have a connection with employment.

Comcare specifically excludes from compensation any injuries that occur due to:

  • because the employee voluntarily and unreasonably submits to an abnormal risk of injury;
  • because of serious and wilful misconduct by an employee (including being under the influence of alcohol or non-prescribed drugs).
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