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27 Oct 2020

Employee Injured Outside Work Successfully Claims Workcover

An employee’s participation in recreational cricket outside their workplace was sufficiently connected to his employment so as to give rise to an entitlement to workers’ compensation, an Australian tribunal has found.

Facts

A fly-in-fly-out mineworker (the Applicant) who injured his knee while playing cricket in between shifts brought forward a workers’ compensation claim against his employer (the Respondent).

Key Issues in Dispute

The tribunal in this case was tasked with resolving the following three points of contention:

  1. Whether the Applicant’s injury arose in the course of employment within the meaning of s 7(2)(a) of the Return to Work Act 2014 (SA) (the Act);
  2. Whether employment was a significant contributing cause of injury within s 7(2)(a) of the Act; and
  3. Whether the exemption from liability afforded by s 7(7) of the Act applies because the injury arises out of or in the course of the Applicant’s involvement in a sporting activity.

Key Findings

Did the employer impliedly direct or request the Applicant to play cricket?

In considering whether the Applicant’s injury arose in the course of employment, the Respondent argued that, at the time of the injury, the Applicant was not engaged in actual work. Rather, the Applicant was simply managing the transition from his night shift to day shift, attempting to remain awake through participating in sport.

On these grounds, the tribunal found that the Applicant was in no way induced or encouraged by the Respondent to engage in the sport; nor did the Respondent, through its policies, require worker to maintain a certain level of personal fitness. Despite this, the tribunal went on to find that there was, in fact, a causal connection between the Applicant’s injury and its employment.  

Is there sufficient connection between playing cricket and employment?

Critically, the injury sustained by the applicant occurred during the 24 hours between changeover from the night shift to the day shift.  Participating in cricket for the purposes of staying awake during the day, the Applicant was essentially mitigating the effects of fatigue during work the following day.

A failure to remain awake, as the Applicant contended, would render him deprived of adequate sleep at night and as a result, he would fail to “awake refreshed and well rested for the first day of shift”.

Having considered this argument, the tribunal found a sufficient degree of connectedness between he Applicant’s participation in cricket and his employment.  In particular, the tribunal reasoned that the means through which the Applicant sought to remain awake for the purposes of work – playing cricket – was sufficiently linked to employment and therefore, it formed part of the Applicant’s employment.

Referring to the Respondent’s “Code and Conduct Policies”, the tribunal unearthed further evidence in favour of the Applicant. In essence, the Respondent’s policies imposed a duty on its workers to manage their rostered time off and in doing so, prevent the effects of fatigue from negatively impacting their performance at work. The tribunal held that, through participating in cricket, the Applicant was acting in compliance with the Respondent’s policy: he was managing his fatigue by ensuring that he would receive an adequate night’s sleep. As such, the shift change period was held to be part of the Applicant’s employment.

Notably, had the Applicant sustained an injury at a time that did not involve a shift change, the Applicant would not be entitled to compensation.

Are you an employee looking for legal advice?

Not sure if you are eligible to claim? Contact our employment lawyers in Brisbane for more information regarding Fair Work Act Claims.

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