Baker & McKenzie: Australia Employment Newsletter - May 2012

Beware the over-enthusiastic Hurdler in Accounts........

You may have heard in dispatches last week of the employee suing Bunnings for injuries sustained during an employer-organised "employee Olympics". The event was organised to celebrate the Beijing Olympics back in 2008. The Queensland worker sustained a fracture to her calf bone during a game of tunnel ball when she slipped and fell. The worker's claim is currently before the District Court of Queensland, where she is seeking just under $365,000 in damages.

Of course, the perils of work-sanctioned sporting events are well appreciated by the enthusiastic, but woefully unfit, amongst us (one of the writers is still recovering post-kneecapping at a 2006 corporate golf day). Notwithstanding, Australians love playing, watching, and talking about sport. Sporting events, when run effectively and fairly, can provide a great opportunity for bonding, networking and marketing. The problem is that we often forget that "extra-curricular" activities that are connected to or organised through work will still be taken to be activities that are either "in the course of employment" or otherwise connected with work so as to give rise to liability under workplace laws.

Workers' Compensation Laws – When is an injury compensable?

The connection between workplace laws and extra-curricular activities is often in focus in the context of workers compensation laws. Most employers in Australia are subject to state-based workers' compensation laws. Whilst these laws do differ in some respects, the tests for when an injury or illness will be compensable are similar. Generally, an employee will be entitled to compensation in respect of an injury or illness arising out of or in the course of the employee's employment. There are some exceptions and clarifications to this rule (for example, in relation to psychological injuries). However, for the most part, the test is a simple one, and the scope of application is wide.

Employers often fail to properly address workers' compensation (and more generally workplace health and safety) issues in planning or providing extra-curricular activities. For example, many employers now provide access to yoga or pilates classes or massage therapy provided by a third party at the employer's site. However, often employers do not turn their minds to addressing the risks that may be associated with providing these services. Take for example a yoga class:

●    Has the instructor been properly vetted?

●    Will the classes be run at an appropriate level for attendees?

●    Is the location appropriate (eg, properly ventilated) for the class?

●    Do employees understand the risks associated with taking the class?

Where an arrangement with an instructor has been properly vetted and documented, it may be appropriate for the employer to distance itself from services being offered by the third party. Establishing distance may assist in showing that an employer has complied with its general duty of care and statutory safety obligations in facilitating classes or activities. However, despite this, the employer may still be liable for injuries sustained during the activities under workers' compensation laws. This is primarily because workers' compensation laws create statutory no-fault schemes, but also because Courts and Tribunals have been generous in formulating tests for when an injury will fall within the legislation.

Examples of workers' compensation at work in "extra-curricular" injuries.

In the past, employees have been entitled to claim for injuries sustained during work-arranged or sponsored sporting events. For example, a Senior Customs Officer was entitled to workers compensation for an injury he suffered whilst warming up for a lunch-time soccer match. Whilst the matches were organised by a Social Club rather than the employer itself, the matches took place during working hours and employees were cleared to take long lunches without loss of pay specifically to indulge their inner David Beckham. It was also significant that participation in the matches was effectively encouraged by the employer by way of internal emails promoting the matches and words of support from Supervisors (see: Saunders v Comcare [2011] AATA 238).

Workers' compensation may also be payable in respect of injuries sustained by an employee engaged in activities during "free time" (that is,  between sessions) at a work conference. Take the case of Mr Allen, who was a Sydney-based payroll manager. Mr Allen attended a conference arranged by his employer in Melbourne. Between conference activities, the Company had allocated some 'free time' for the employees to do whatever they wished. Allen chose to attend a Timezone centre with some colleagues during the allotted free time. Allen proceeded to play a horse racing video game, where the player needed to straddle some equipment and simulate 'riding it like a jockey' to play the game. During this, he sustained injuries to his back which resulted in a back injury requiring surgery.  The Court held that Allen's conduct was within the course of employment, stating that in allocating some free time during the conference timetable, the Company would have known that its employees would make use of the 'vast service industry, which included Timezone' that Melbourne provided. Subsequently, the activity which caused Allen's injury was permitted or authorised by the employer and fell within the scope of workers' compensation laws: see: Allen v Hudson Global (Aust) Pty Limited [2006] NSWWCCPD 360.

In a surprising turn of events, the Federal Court recently ruled that an employee was entitled to workers' compensation for injuries sustained during after hours 'adult-gymnastics'. In this case, an employee dispatched to country NSW to conduct budget reviews and interviews was injured in her motel room by a light fitting falling on her face during a 'pairs event' with a male friend she had arranged to meet with. The Court found that the employee's injuries were sustained while she was in a motel room as required by her employer during an interval or interlude to an overall period of work. As there was no finding of misconduct by the employee, nor was there any evidence that the injuries were self-inflicted, the Court ruled that the injuries were in the course of her employment and attracted workers' compensation. Stay tuned for Part 2 of this saga, as the Full Federal Court will hear an appeal of this decision later this year. See: PVYW v Comcare (No 2) [2012] FCA 395.

Minimising Risk in Corporate Sporting Activities

Nobody wants to be a killjoy: who can blame employers for wanting to harness the Olympic spirit to get their workforce going? Most HR professionals will agree that it is important to have extra-curricular activities that give employees an opportunity to bond with each other over something other than a deadline. The key to organising any such events is to think about minimising risk early in the planning phase.

Before you embark on scheduling for your organisations own "mini-Olympics" in the lead-up to London 2012, you should address the following issues in the planning stages:

●    Is the location that the event will be held in appropriate and safe? For example, are the surfaces appropriate for running/jumping, not too slippery etc? Where possible, it is preferable to hold sporting events at a purpose-built location operated by a third party with expertise in running the venue, for example a sporting park or indoor sports centre.

●    Will there be adequately trained personnel available to assist on the day? For example, will there be experienced people able to give instruction as to how the activities should be safely performed? Will there be trained first-aid personnel present?

●    Will the activities themselves be appropriate for non-professional athletes? Do the activities involve high-risks of injury for persons who do not regularly engage in sport? (NB: Coal-walking, fencing and Greco-Roman wrestling are high risk for any level of athlete!)

●    Have you taken into account individual risk factors in vetting participants? For example, it may not be advisable to allow employees with known health problems to participate in certain events, or at least without medical clearance. Catering for individuals within teams (where such events are generally intended to be team-building) may also impact on the activities chosen.

Finally, we suggest that you pay your respects to the 'Olympic Spirit', best equated with the likes of Eric Moussambani and the statement that "The important thing is not to win, but to take part". Whilst not strictly legal advice, this philosophy is sure to foster less drama and more calm in any work-affiliated sporting pursuits.