On thin ice – what actions can an employer induce or encourage?

Tosovic v Sigma Air Conditioning Pty Ltd [2022] NSWPIC 92

The worker was employed as a Project Design Manager by the employer, Sigma Air Conditioning Pty Ltd. The employer designed air conditioning units for train carriages both in Australia and internationally.

On 21 January 2017, the worker arrived in Vienna, Austria, to oversee the testing and installation of air conditioning units. The testing had to be done in a specialised climate facility called Rail Tec Arsenal (RTA).

On 25 January 2017, transport to the RTA was delayed, so the worker arranged for his family to join him in Vienna. He also contacted a former colleague who regularly supervised testing at the RTA. They met for lunch to discuss how the worker might gain early access to the RTA.  Thereafter, they were joined by the worker’s family and went ice skating at an adjoining ‘pop-up’ ice rink. Whilst assisting his son, the worker fell backwards and struck his head, suffering a serious brain injury.

Issues for determination

The worker sought weekly compensation, an Order for hospital and medical expenses under section 60 of the Workers Compensation Act 1987 (the 1987 Act) and an Award for permanent impairment compensation with respect to his brain injury pursuant to section 66 of the 1987 Act.

The employer disputed the claim on the basis that the injury did not arise out of or in the course of employment and employment was not a substantial contributing factor to the injury pursuant to sections 4 and 9A of the 1987 Act.

Decision

Member Paul Sweeney highlighted that it has been widely established that employees who work in foreign cities were on call 24 hours a day. The Member referred to the High Court case of Favelle Mort Ltd v Murray [1976] HCA 13, which found that an engineer who died of meningoencephalitis whilst in the United States suffered an injury which occurred in the course of his employment.

The Member accepted that whilst the course of the worker’s employment in Vienna extended beyond periods of actual work, there may also be intervals in which a worker engages in activity unconnected to his employment.

In determining whether the injury was suffered in the course of his employment, Member Sweeney had regard to the decision of Comcare v PVYW [2013] HCA 1, in which the majority of the High Court held that the relevant question is whether the employer encouraged or induced the employee to engage in the activity that was being undertaken at the time of injury.

The Member found that the evidence indicated the worker met for lunch on 25 January 2017 to discuss gaining access to the RTA to carry out the necessary testing. The Member was satisfied that seeking the assistance of the employee was appropriate and therefore found that the lunch meeting had occurred in the course of his employment.

The Member however stated that the employment connection to the ice skating was more tenuous. The evidence of the worker indicated that the co-worker invited him to go ice skating and to refuse may cause offence, therefore possibly hindering the worker in gaining access to the RTA. Member Sweeney was satisfied that gaining access to the RTA was an activity that the employer implicitly encouraged. In that sense, Member Sweeney stated that the ice skating could be considered an extension of the worker’s efforts to obtain the co-worker’s help in accessing the RTA.

The Member held at paragraph 70 of the decision that , “I appreciate that there is a distinction between not prohibiting an activity and impliedly inducing it. However, in the circumstances of this case, I believe that the evidence establishes that the instruction to the Applicant to gain access to the RTA facility impliedly induced him to meet with Mr Terreng and to comply with his suggestion that he and his children ice skate in the period leading up to his injury.”

Member Sweeney was therefore satisfied that the worker was in the course of his employment at the time of the injury. Having accepted this, the Member also accepted that employment was a substantial contributing factor to the injury.

Implications

This case highlights that, when determining whether an injury arose out of or in the course of employment, consideration must be given to the activity the worker was carrying out at the time and whether they were encouraged or induced by their employer to complete this activity. Even activities that on their face value may appear to be unconnected to work may be considered to have arisen out of or in the course of employment if the activity was impliedly inducement or encouraged.

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