When is a party a work function? By Mary Karekos | June 2011 Area of Expertise | Workers Compensation
Summary
In the matter of Hills v Pioneer Studios Pty Ltd [2011] NSWWCCPD 30 (1 June 2011), (‘Hills’) a worker who attended an after-hours social function with co-workers was found to have sustained an injury arising out of her employment, and employment was also found to have been a substantial contributing factor. Deputy President Roche concluded that an employer’s ‘suggestion’ to attend an after-hours social function amounted to ‘inducement’. The fact that the employer’s premises were made available for the function was also a significant factor in assessing the connection between the injury and the workplace.
Who does this impact?
Employers and their involvement in social functions. Claims officers considering liability.
What action should be taken?
The circumstances surrounding an injury that occurs during the course of a social function should be carefully analysed to determine whether or not they satisfy the criteria discussed by DP Roche in ‘Hills’.
Overview DECISION AT FIRST INSTANCE - DECISION OF 13 JANUARY 2011 Arbitrator Moore found that the issues in dispute were those of ‘injury’(under s4), ‘substantial contributing factor’ (under s9A); and ‘misconduct by the worker’ (under s14). The Arbitrator entered an Award for the Respondent as she was not satisfied that the worker had been ‘induced’ or ‘encouraged’ to attend the social function and she found that on the night of the party, the employer’s premises had become ‘a place of entertainment’. She was not satisfied that there was a connection between the injury and employment and determined that the injury could not be regarded as having arisen out of that employment. The Arbitrator found that the only connection with ‘employment’ was that the function was held at the employer’s premises and that the evidence did not disclose that the employer encouraged or induced employees to attend.
DECISION OF DEPUTY PRESIDENT ROCHE ON APPEAL DATED 1 JUNE 2011 Deputy President Roche revoked the Arbitrator’s decision and entered an Award in favour of the worker. The Deputy President found that the fact that the employer made the premises available for the party was a significant factor in assessing the connection between work and the injury, as the employer had made a significant and valuable contribution of resources towards the event.
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When is a Party a Work Function? by Mary Karekos
Whilst the Deputy President accepted that staff had not been ‘compelled’ or ‘ordered’ to attend the function, he stated that a worker can be ‘encouraged and induced’ to engage in a work activity without being compelled or coerced into doing so. Therefore, the lack of coercion was not a determinative factor. Deputy President Roche concluded that there was a direct and unbroken connection between the employment and the injury. He accepted that the worker attended the employer’s premises on the night of the function at the encouragement of the Managing Director and departing Supervisor and that the function had two main purposes, one of which was a work purpose farewelling a long standing employee. He concluded that the worker was encouraged and induced to attend the function and that she was ‘actuated’ to attend by work purposes. In addition to allowing its premises to be used, the employer also exercised control over the function by telling an employee to ask people to leave at about 2:00am.
Conclusion An employer’s contribution to a social function can have implications for its workers compensation liability and a suggestion that a worker attend a social function on work premises may be sufficient to make any resulting injury compensable under the Act.
For more information, please contact: Mary Karekos
Partner T: 02 8257 5731 mary.karekos@turkslegal.com.au
Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099 Insurance & Financial Services | Commercial Disputes | Workers Compensation | Business & Property
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