The travails of a high-profile claimant have shone a light on one of murkiest areas of workers compensation: whether an injury can be said to ‘arise out of the course of employment’. Particular difficulties can arise when, as in this case, a ‘modern’ employment scenario falls to be examined under the framework of antiquated legislative concepts.

Controversial Catalyst presenter Maryanne Dimasi brought a compensation claim after incident when she fractured her hip while jogging on a day she was working from home. The injury was sustained at approximately 9:30am.

Dimasi claimed that she was injured during an ‘ordinary recess’ from her place of work which, on this day, was her home. The insurer rejected her claim on the bases that Dimasi’s home was not a ‘place of work’ within the meaning of the legislation, and that a morning jogging break was not an ‘ordinary recess’.

On 26 August 2016, the Administrative Appeals Tribunal (‘Tribunal’) found that Dimasi’s home was a ‘place of work’ but that her jogging break was not an ‘ordinary recess’. The injury occurring on the jogging break was therefore found not to have arisen in the course of employment and was, accordingly, non-compensable.

‘Place of work’

The Tribunal recognised that flexible work arrangements – including working from home – are increasingly prevalent in the modern workforce.

Though no formal arrangement between Dimasi and her employer regarding working from home, for the Tribunal, the fact that her manager had approved the plan for her to work from home on the relevant date was sufficient to render the home her ‘place of work’ for the purposes of the legislation.

The Tribunal found that Dimasi’s working-from-home scenario had ‘the required nexus with employment activity’. It did, however, reject Dimasi’s argument that a ‘place of work’ is any location where a worker conducts their work, The apparently inherent restriction in the concept of ‘place of work’ is significant, particularly pertinent in the smartphone era where people can be doing work anywhere, anytime.

‘Ordinary recess’

It is well established that an injury occurring during an ‘ordinary recess’ – typically a lunch break – will be taken to have arisen out of the course of employment. The issue in this case was that Dimasi took her ‘jogging break’ at about 9:30am.

Dimasi argued that she frequently jogged at this time in the working day, as it helped her to clear her head, and so it was ‘ordinary recess’ for her. It was acknowledge by her employer that Dimasi frequently took jogging breaks, and that this was a normal and accepted practice for which Dimasi did not need to seek special permission and which was ‘relevant to her employment’.

The insurer, however, took the view that ‘ordinary recess’ meant traditional, regimented breaks, requiring a clear indication of permission from the employer.

The tribunal distinguished between a jog during an ‘ordinary recess’ (e.g. lunch break) and a jog taken on an ‘ad hoc basis during the working day’. The latter jogging scenario, applicable in the present case, was not found to be an ‘ordinary recess’.

Comment

This decision can be seen as an example of outmoded law being applied to modern workplace practices and attitudes.

The Tribunal notes that the wording of the current legislation is ‘relevantly identical’ to legislation drafted 65 years ago. The two cases cited in the judgement – Landers v Dawson and Drummond v Drummond – both date from the early 1960’s.

It is almost trite to state that employer attitudes towards flexible working arrangements and to the utility of promoting health and fitness among employees have evolved significantly in recent decades. Despite this, the Tribunal stresses at several points in the judgement that the scope given to concepts like ‘place of work’ and ‘ordinary recess’ must accord with the way that these concepts were ‘contemplated’ in the drafting of the legislation.

In relation to both ‘place of work’ and ‘ordinary recess’, the Tribunal wrestles with how far it is prepared to stretch traditional concepts and categories to accommodate the claimant’s thoroughly modern work-injury scenario. In its findings, the Tribunal was significantly more accommodating of modern workplace practices and attitudes with respect to the first concept than to the second. If there are coherent, logical legal principals underpinning these findings which might provide guidance for future matters, they are not immediately apparent.

If you believe that your injury is related to your employment, contact the experts at Redlich's Work Injury Lawyers on (03) 9321 9906.