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Perspective

Stringent work travel policies protect employer from workers compensation claim

Nes Demir
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We recently brought you two decisions which held employers liable for injuries their employees sustained while participating in out-of-work activities. The decisions were largely based around each employer actively encouraging the employees participation and in one case, the employer contributing a significant amount of resources for the activity. Read more here and here.

We also recently brought you decisions which did not extend such liability to employers because the out-of-work activity was not induced or encouraged by the employer and/or the nexus between the work-activity and the out-of-work activity was broken. Read more here.

In the latest case, Workers’ Compensation Regulator v Glass [2020] QCA 133, a teacher (Ms Glass) unsuccessfully appealed an Industrial Court decision which did not extend this liability to her employer for injuries she sustained during an overseas work trip.

Ms Glass attended the work trip with a group of teachers and students. On the second day of the trip, the group altered their itinerary and visited the Blue Lagoon. Ms Glass injured her shoulder using a rope swing to jump from an elevated platform into the water.

Ms Glass’ workers compensation claim was rejected from the outset by the Queensland Industrial Relations Commission on the basis her employer, Brisbane Catholic Education (BCE), did not authorise, induce or encourage her participation in the activity.

Ms Glass appealed to the Industrial Court, claiming she took a turn on the rope swing “in discharge of her role in facilitating the students’ engagement in the activity”. The Industrial Court rejected her argument, confirming the test was whether the activity was incidental to her employment which, in this case, it was not. Ms Glass’ appeal was dismissed.

Ms Glass has again tried to appeal the decision but her notice of appeal was struck out on the basis that the Industrial Court’s judgement was final and conclusive.

Lessons

  • The test is whether the activity is incidental to the employment, not whether it is necessary. For example, on a work trip activities such as eating, bathing or sleeping would be incidental to the employment and injuries sustained while carrying out those activities would be covered by workers compensation;
  • An interval test may be used with which courts consider the timeline of events leading to an employee’s injury to determine whether they can be reasonably connected to the employee’s employment. This case shows even a five-second activity may be sufficient to break the nexus and
  • Employers should have stringent guidelines and procedures for work trips, to ensure all planned activities are appropriate and safe and in line with the relevant occupational health and safety legislation. In this case, BCE was required under its guidelines and procedures to develop a risk management plan with risk assessments of all proposed activities and obtain endorsement from their in house work health and safety manager. The rope swing activity would not have been approved under this process.
Nes Demir
Published:

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