Attendance at Work Not In The Course Of Employment
Recently, the District Court of Western Australia (on Appeal from WorkCover WA) handed down a decision in the matter of Ramsay Health Care Australia Pty Ltd v Wyatt [2017] WADC 145.
This case dealt with the issue of whether an injury was “in the course of employment”.
Increased Lump Sum Payment
Lump sum payments for dependents of deceased workers are set to substantially increase. Under the Act, the current lump sum payout is $304,185. The new legislative changes will increase this payout to $554,727, therefore being an increase of over $250,000.00.
These changes will further increase the gap between fatal compensation payouts and non-fatal injuries compensation payouts. Given that the lump sum and periodic payments for dependency claims have consistently been approximately half of what is provided across Australia, the proposed increase is notably justified by the Government.
BACKGROUND
The respondent worker (Wyatt) was employed by the appellant (Ramsay Health Care Australia Pty Ltd) at a hospital that it operated. The respondent attended the hospital on a registered day off to complete a form that she had been previously requested to complete. During this attendance the respondent misjudged the positioning of a chair and fell hard on her buttocks resulting in injury.
The respondent commenced proceedings against the appellant at WorkCover for weekly payments and statutory expenses. She claimed that she had suffered ‘a personal injury by accident arising out of or in the course of her employment’ pursuant to s5 of the Workers Compensation and Injury Management Act 1981 (WA) (“the Act”).
On 29 November 2016 an Arbitrator found for the respondent and ordered the appellant pay weekly payments for total incapacity from 8 April 2014 to 12 November 2014 and from 2 to 22 January 2015. This decision was appealed to the District Court.
DISTRICT COURT OF WESTERN AUSTRALIA DECISION
The primary issues for determination in this case were whether the respondent sustained injury arising out of or in the course of her employment and whether the arbitrator identified and applied the correct test to arrive at this conclusion.
Birmingham QC DCJ held that as a result of the respondent suffering injuries outside ordinary work hours the Arbitrator erred in not properly considering and applying the test as articulated by the High Court in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21. In essence this test states that in periods between actual work if an employee is to be deemed ‘in the course of employment’ for the purpose of the Act they must be doing ‘the very thing’ that the employer encouraged them to be doing when the injury occurs.
Birmingham QC DCJ went on to clarify this by outlining when the employee was not performing actual work duties within scheduled work hours, it is necessary that the employer had required, induced, authorised, expected or encouraged the worker to spend the particular time in a particular way. It is not simply a case of inducing or encouraging a particular outcome and leaving it to the employee to choose a time, place and way of achieving that outcome.
The arbitrator made no finding as to what was required of the respondent or what was to be done. However it was rightfully found by the arbitrator that the respondent was not expressly required or requested to attend the hospital and complete the form on that particular day. With this in mind it was held by Birmingham QC DCJ that the respondent was engaging in an activity that was not required, induced, expected or authorised by the appellant.
For these reasons, Birmingham QC DCJ found that the injury did not occur arising out of or in the course of employment and as a result the decision of the arbitrator was set aside and the appeal allowed. Further, Birmingham QC DCJ outlined that in his initial decision the arbitrator focused on the respondent’s subjective intention rather than on the duty or activity that was said to be required, induced, expected or authorised by the appellant.
SIGNIFICANCE
This decision helps to clarify principles regarding whether an injury has occurred during the course of employment, especially in regards to interpreting when periods between actual work can be considered as still in the course of employment. It also narrows the scope of what kind of conduct can be considered as in ‘the course of employment.’