In another decision which broadens the definition of what is deemed to be connected to employment, on 4 December 2015 in the case of Westrupp v BIS Industries Limited [2015] FCAFC 173, the Full Court of the Federal Court of Australia ruled in favour of an employee claiming workers' compensation from an assault outside a local tavern.
Background
The employee, Mr Westrupp, was employed as a fly-in fly-out worker and was physically assaulted between two shifts. The injury occurred outside a tavern in Leinster, Western Australia; a town which exclusively housed workers of the employer. Although the attacker was a co-worker of Mr Westrupp, neither party were engaged in any work duties at the time.
Mr Westrupp had previously submitted a claim for workers' compensation which was rejected by both the primary insurer and the Administrative Appeals Tribunal on the basis the assault could not be said to 'arise from, or in the course of, employment'. Critically in this assessment, the Tribunal applied the reasoning of Comcare v PVYW (2013) 250 CLR 246 in finding the establishment and provision of the tavern alone did not create a liability on the employer "for everything that occurs whilst the employee is present at that place or not".
Judgment
In exercising its appellate jurisdiction, the Full Court set aside the decision of the AAT and found Mr Westrupp's assault was compensable. In reaching this decision, the Court applied Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 on the basis the subject injury occurred at, or in reference to, a 'place' which Mr Westrupp was encouraged or induced by the employer to attend.
At the outset the Court rejected the AAT's point of reference as the tavern, ruling that the appropriate determination of 'place' was the town of Leinster itself. Such distinction was crucial in the Court's decision, as the nature of Mr Westrupp's employment clearly assumed and provided for his presence in the town. This conclusion was based upon a number of factors including; that he would not have been in the town but for the employment; he was under the employer's control at all times in the town; he was subject to the employer's code of behaviour during the entirety of the two weeks; and it was reasonable that he would use town facilities during his stay.
It was on the basis of the employer's inducement of Mr Westrupp to reside in the town that rendered all times between shifts as intervals within the overall two-week period of work. This created a sufficient link to his employment for the workers' compensation claim.
Comments
Although this case explores the liability of employers for fly-in fly-out workers, it has broader implications for any employment situation in which the employee's whereabouts outside of work may be influenced by the employer. While Queensland claims have the further threshold requirement that employment be a 'significant contributing factor' (for physical injuries) or 'major significant contributing factor' (for psychiatric or psychological disorders), the broad interpretation arguably places a burdensome duty upon employers (such as Local Councils) with rural or remote job locations requiring accommodation or other facilities for its staff.
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.
