Employer found liable for out-of-work sport injury, made to pay workers’ comp

By Portner Press on January 18th, 2019
  1. Work Health & Safety Act
  2. Workers' Compensation

 

A Department of Human Resources (DHS) worker who was denied workers’ compensation for a sport injury she sustained outside of work, has successfully won her claim after a review at the Administrative Appeals Tribunal (AAT).

She argued that her employer was liable for an injury she sustained after playing in a netball match, as it had actively encouraged her to participate in the activity which was “associated with the employee’s employment”.

The employer contended that it wasn’t liable, as the netball game had not been organised, nor was controlled or supervised by it, and that the activity of playing netball was far removed from the worker’s mainly clerical work duties.

At the hearing, AAT Deputy President Dennis Cowdroy said that the critical issue was whether the employer had “actively encouraged the employee to participate in the activity in which the injury was sustained”.

A few months prior to the netball match, a DHS staff member had forwarded an email concerning the indigenous NAIDOC celebrations to various other staff including the worker’s supervisor.

The supervisor told the worker, who is of Aboriginal descent, that the DHS was looking for workers to participate in the NAIDOC celebrations, in particular putting together a netball team as it had done in previous years. The worker said she was told “that because of her Aboriginal heritage, it would be a good way not only to represent DHS, but would be a good opportunity for herself to use the game as a networking event for her career advancement”.

To attend the match, the worker took special “cultural leave”, which the employer provided to workers of Aboriginal descent and was scheduled to return to work the following day.

When she played in the netball match, she ruptured a ligament in her knee, which she submitted a workers’ compensation claim for, alleging at the time of her injury she was “engaged in an employer approved activity”. The claim was initially denied.

Deputy President Cowdroy cited in his consideration other previous High Court decisions that didn’t “indicate that the element of control plays any specific role in determining whether the employer is liable where a worker is injured during a work interval”.

He concluded that this case was unlike cases “where injuries have been caused to employees in the course of sporting activities which were not sanctioned by the employer” and said that he was satisfied that the worker’s participation in the netball activity was “solely as a result of the active encouragement received from DHS”.

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