Australia: Employer found liable for co-worker's assault on employee at tavern

Facts - Westrupp v BIS Industries Limited [2015] FCAFC 173

The Claimant, Mr Edward Westrupp, was a 61 year old FIFO worker employed by BIS Industries as a silo operator to work in Leinster (Leinster is a company town, operated by BHB Billiton). The Claimant worked two weeks on, one week off roster. During his two weeks on, he resided at the Leinster Mining Camp. His actual home was in a suburb in Auckland, New Zealand.

Leinster is a closed town and all BIS Industries employees who were accommodated in the town were subject to the Leinster Township and SPQ Village Rules. Supplied for the employees were camp rooms, a tavern, gym, swimming pool, basketball, squash and tennis courts. The Village rules dealt with employee conduct while in areas such as the tavern and in the town.

The Claimant's shift arrangements were such that on the first week of his two week shift, he worked day shift, and then 24 hours after his final day shift, he commenced night shift for a week. The assault occurred on the evening of his final day shift, in the middle of his two week shift period.

The circumstances of the assault were that on the evening of 26 March 2014, the Claimant recognised a woman he had known since 2006. The woman stood up and hugged the Claimant, during which another patron (the assailant, also an employee of BIS Industries) spoke aggressively to the Claimant. The Claimant however, walked away.

A short time later, the Claimant was speaking to some friends when the assailant approached him and assaulted him. Consequently, the Claimant suffered a right shoulder injury.

The Claimant's claim was rejected by BIS Industries on 26 May 2014 and on 23 June 2014. The decision to reject the Claimant's claim was affirmed by a Reconsiderations Officer from an independent reviewer. The Claimant sought review by the AAT, however, the AAT affirmed the decision made by the Reconsiderations Officer.

Decision of the Full Court of the Federal Court

The Court held that there was neither a suggestion nor a finding that the Claimant was at any time in breach of the code of behaviour or any of the Village rules.

The Court found that it was an indication of the degree of direct control retained by BIS Industries over both the Claimant and the assailant for the duration of the time they spent in Leinster that their conduct was investigated by BIS Industries and that the assailant was found to be in breach of the code of behaviour.

Furthermore, BIS Industries expected workers to be properly rested when they commenced night shift the following day. The evidence of the Claimant was that accordingly, BIS Industries encouraged staff not to drive at night unless necessary. The Federal Court held that the Claimant was therefore induced to be at the camp during his swing shift. The Court held that an argument that the incident occurred between two discrete shifts or periods of work was flawed; the Court said that the injury occurred in an interval in an overall period of work. To say otherwise took no account of the "fly in/ fly" out nature of the employment.

The Federal Court further held that there was no reason in the present case to regard the tavern as a place unconnected with employment.

Implications

Employers need to be mindful that an injury sustained by an employee during an interval or interlude in an overall period of work can constitute an injury arising out of, or in the course of the employment. This is especially in circumstances where the employer provides facilities for the employee's use, encourages the employee to use those facilities and the employee's conduct remains governed by the employer's code of conduct during that period.

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.