A case involving a fast food giant, a specific shift start time, a required arrival time, a sneaky cigarette, a ladder, a broken leg and an overturned WorkCover claim all came together recently in a Queensland court with a decision that may have far reaching implications for businesses throughout Australia. How is this even possible you wonder….
Does WorkCover cover smoko?
McDonalds Richlands had a requirement that employees be at work ten minutes prior to the start of their official shift. It’s not an unheard of practice – in the fast-paced world of Quick Service Restaurants you don’t want a lapse in service as shifts swap over. This early arrival requirement allowed for teams to switch over quickly and efficiently without customers having the delivery of their Big Macs delayed! So as per the terms of her employment, Mandep Sarkaria arrived earlier than her appointed start time but as she was unable to commence work, she grabbed a moment to have a quick cigarette. She climbed a ladder that was used to access the roof primarily for cleaning purposes, had her smoko and then upon climbing back down, fell with the result being a broken leg and a WorkCover claim.
The claim was rejected in the first instance but was upheld on appeal and this is where business owners and leaders need to ensure they have a strong understanding of their employer obligations as per the terms of their WorkCover insurance.
Under the Queensland workers’ compensation system, an injury that occurs when a worker is temporarily absent from the place of employment during an ordinary recess will be covered. WorkCover Queensland rejected the claim based on the view that Ms Sarkaria was not on a break – or ordinary recess – hence her broken leg did not arise during employment. However, the Industrial Court of Queensland recently overturned this decision as the judge determined the required early arrival period could be considered ‘ordinary recess’ or an enforced break prior to her shift and therefore, she was covered by WorkCover and entitled to compensation.
Why does it matter to your business?
So if your business doesn’t sit in Queensland, why should you care about this decision? Let’s break it down by state or territory –
Victoria, New South Wales and Northern Territory – all have legislation that references but doesn’t specifically define ‘ordinary recess’ as occurs in Queensland. So if you require your team to arrive earlier than their stated start time, and an injury occurs, you may be impacted by a WorkCver claim as this case may be cited when the courts are looking to define ‘ordinary recess’
Western Australia – any injuries sustained in WA workplaces that occur while a worker is acting under an employer’s direction – such as the requirement to arrive 10 minutes prior to a shift commencing – will receive compensation.
South Australia – no confusion here as the Act in SA expressly advises that a worker’s early attendance for the purposes of preparing for work will be covered in the event of injury.
In the event that you want your team on site early, then you need to ensure you put in place training and policies to ensure they do not participate in any behaviour that is unsafe and could result in any form of injury. A couple of simple actions such as making sure you have covered this area off in your OH&S manual, the training you provide at the time of onboarding or as part of ongoing updates or providing supervision if necessary, could protect both your business and your team from harm.
Don’t wait for something to happen to your team, call the HR Staff n’ Stuff team of HR Advisers as we are here to help you get your policies and training right so you can minimise risk!
The HR Staff n' Stuff team all contribute to our blogs. Enjoy the read!