In certain circumstances a worker does not need to be at work to suffer a work-related injury where the employer has induced or encouraged the employee to do the very act the employee was dong when they were injured.

The Facts

Mr Ziebarth was employed as a Fleet Service Manager with Blenners Transport. He alleged he suffered a work-related injury to his lower back on 21 March 2013 as a result of slipping on wet tiles at home trying to answer his work telephone.

Mr Ziebarth said he was showering when he heard his work mobile phone ringing on his bedside table. He said he moved out of the shower, slipped on wet bathroom tiles, and fell forward.

Mr Ziebarth said that he had been reprimanded in the past by his supervisor for not answering his work mobile while on call and felt obliged to answer it as soon as it rang. He was later diagnosed with a disc protrusion.

Findings

The Commission referred to the decision of Campbell v Australia Leisure & Hospital Group Pty Ltd & Anor (2015) ICQ 016 where it was held that for the injury to be in the course of employment, the employee must be doing the very thing that the employer induced or encouraged the employee to do, when the injury occurred.

Therefore, the Commission had to make a determination as to what was the activity Mr Ziebarth was engaged in at the time of the incident and whether his employer induced or encouraged him to undertake that activity.

The Commission determined that the activity Mr Ziebarth engaged in at the time of the incident was answering the work phone, and not running, as alleged by the Regulator. The Commission further determined that Mr Ziebarth was induced and encouraged to answer the work mobile. The Deputy President noted that under Mr Ziebarth's work contract he was to be on call from time to time and he was given a mobile phone for work duties while on call.

Conclusion

This case is a prime example that a worker does not need to be at work to suffer a work-related injury. A number of employers in various industries provide their workers with work phones. It is therefore important to be very clear about expectations in relation to the use of work phones. This case is also a good reminder of what you induce or encourage your employees to do, either at work or outside of work.

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