A McDonald’s worker, who broke her leg after she used the restaurant’s rooftop to take a smoking break, has won a workers’ compensation claim upon a second appeal.

The worker had used a three-metre ladder inside the storeroom to gain access to the premises’ roof to smoke a cigarette 10 minutes before starting a shift. When she descended from the ladder she fell and broke her right leg.

She then made a claim for worker’s compensation which was rejected.

The rooftop was not a designated smoking area and the worker did not ask for permission to access the rooftop to smoke. There was also a sign on the ladder warning against going on the rooftop.

In the worker’s first appeal against the decision, which was heard in October 2017, the Worker’s Compensation Regulator denied liability and the Queensland Industrial Relations Commission (QIRC) dismissed the appeal.

The worker argued that she was entitled to compensation as outlined in section 34 of Queensland’s Workers’ Compensation And Rehabilitation Act 2003, as her injury had occurred while she was “temporarily absent from the place of employment during an ordinary recess”.

QIRC Vice President Dianne Linnane rejected this claim, and found the rooftop and ladder did form part of her “place of employment” and that the injury did not occur in an “ordinary recess” as the worker had not started work at the time of the injury, hence it was not an “interruption to an otherwise continuous period of work”.

In the second appeal, QIRC President Justice Martin found that the rooftop and ladder were not her “place of employment”, as they were not connected with her normal work duties.

Also, the employer required the worker to arrive at work 10 minutes before her shift, and even though she wasn’t required to undertake duties until the shift start time, in Justice Martin’s view, the worker had “commenced work”.

Justice Martin said that the effect of the previous decision was “that an employee who is required to attend at the place of employment before a shift or other period of work commences will not be afforded any protection under s 34 if that worker is injured in the period before the shift commences”.

“That, with respect, seems to be inconsistent with the purposes of the Act,” he said.

“In the circumstances of this case, the period of time during which an employee was required to attend at the place of employment before a shift commenced should properly be regarded as an ‘ordinary recess’ for the purposes of section 34 of the Act,” Justice Martin said.

The appeal was allowed.