Issue
In N. v Hydro Electric Corporation [2021] TASWRCT 2, the Workers Rehabilitation and Compensation Tribunal (Tasmania) considered the recurrent issue of whether an employer is liable for a worker injured whilst undertaking leisure activities at a remote location for work. Hydro Electric Corporation (Hydro) disputed liability for the worker’s claim for compensation on the basis that the worker’s injury did not arise out of or in the course of his employment when the worker slipped and fell on a wet log whilst on a walk with his partner and his dog.
The worker was employed by Hydro as a relief area coordinator, and was on call, staying at the employer’s Tullah accommodation in the remote western part of Tasmania. The worker received an on call allowance for each day of the shift regardless of whether he was called out to work or not. On the day of the injury, realising that he was no longer in mobile phone range, the worker changed the route of his walk in order to regain mobile phone reception. As he continued his walk, he slipped on the wet log and fractured his left femur.
The employer’s enterprise agreement defined the worker’s ‘Availability Duty’ as ‘duty whereby an employee is available for recall to perform work after normal working hours. An employee on availability duty must be contactable by Hydro Tasmania within 15 minutes and be ready to proceed to commence work within 15 minutes of being contacted.’
Decision
Chief Commissioner Clues considered the leading High Court authorities of Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 and Comcare v PVYW [2013] HCA 41, and accordingly considered ‘the general nature, terms and circumstances of the employment‘ in this case. The Chief Commissioner found that when regard was had to the time, place and circumstance of the activity being undertaken by the worker, as well as the general nature, terms and circumstances of his employment, the connection between his injury and his employment became far less remote.
The Chief Commissioner considered that even though it was the worker’s choice to go on a walk with his partner and dog, the evidence was that he was under the control of the employer given he was inhibited to a degree in the activities he was able to perform. He could not do anything inconsistent with being on Availability Duty.
The Chief Commissioner determined that the worker’s injuries arose in the course of his employment as the activity in which the worker was engaged when his injury occurred (that is, taking a walk with his partner and dog in the Tullah area so as to remain in mobile phone contact in case he was called into work) was within the scope of activity that the employer had encouraged or induced the worker to undertake.
Implications
As with many cases involving workers injured while engaged in leisure activities at remote locations, the particular activity being undertaken by the worker in this case attracts attention (and perhaps some raised eyebrows). But this decision reaffirms the long established principle that the concept of arising ‘in the course of’ employment is not a narrow one.
It is a reminder to consider the broader issues of the nature, terms and circumstances of the employment, as in addition to the particular time, place and circumstance of the activity being undertaken by the worker. While the particular activity might grab the headlines and it might seem incongruous for liability to follow, the entirety of the situation concerning the worker’s presence at the remote location must be taken into account.
This article was written by Luke Taylor, Partner and Laura Paton, Solicitor.
