KFC worker wins compo for post-resignation crash

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KFC worker wins compo for post-resignation crash

A KFC worker injured in a car crash after quitting her job is entitled to compensation. The resignation had not yet taken effect and the journey was undertaken to resolve a work-related bullying matter with the store owner.

A KFC worker injured in a car crash after quitting her job is entitled to compensation. The resignation had not yet taken effect and the journey was undertaken to resolve a work-related bullying matter with the store owner.

[Full text of this case: A E D  v Terrivic Pty Limited [2016] NSWWCC 10 (13 January 2016)]

Ms D was an assistant manager at the KFC store in Broken Hill, NSW until 10 May 2013. She sought workers’ compensation for serious injuries, including a brain injury, suffered in a car accident on 7 May 2013.
 
On the day of the accident, Ms D departed work early while the store manager was out, leaving behind her name badge pinned to a signed letter of resignation. She was upset because the store manager had earlier met with her and a co-worker to discuss the possibility of the latter taking over her duties.
 
Ms D was driving alone when her car left the road, crashed into trees and ended up in a creek. The injuries she suffered rendered her totally unfit for work for two months.
 
When the employer disputed liability for Ms D’s injuries, the Workers Compensation Commission of NSW was required to determine the matter. 

Was injury in course of employment?

 
Ms D submitted that her injuries arose out of and in the course of her employment. Even though she had provided her notice of resignation just prior to departing the workplace, she argued the accident occurred while she was still employed.
 
She claimed the notice did not terminate her employment with immediate effect; rather, she had a contractual obligation to give two weeks’ notice. She also claimed that she had been driving to the sole director’s home to complain of mistreatment by the store manager, including alleged bullying, and to resign if things could not be sorted out to her satisfaction.
 
She added that even if she had intended to repudiate her obligation to perform duties for the duration of the notice period, the letter would not operate to terminate the contract of employment until there was acceptance of the repudiation by the employer.
 
Ms D gave evidence regarding her difficult relations with the store manager. She said he would send her abusive text messages and yell at her for not keeping the store tidy in circumstances where he left the store unattended for hours and the store was understaffed.

She said she had to comfort co-workers who had been abused by the store manager in front of customers and that he appeared to be affected by drugs. Ms D said she had refrained from complaining to the sole director because the store manager threatened she would lose her job if she did.
 
The employer submitted that Ms D’s injuries did not arise out of or in the course of her employment, because she was no longer employed when she suffered the accident. It said she effectively resigned from her employment before departing the store and that she intended for her resignation to have immediate effect because of the terms of her letter and the manner in which she left it at the workplace, which included leaving behind her name badge.
 
The employer said the commission could not be satisfied she was travelling to the sole director’s home, for reasons that included she had not given the sole director or anyone at the store notice of her intention to do so.

It also claimed that in leaving the store in the hands of a trainee supervisor, Ms D committed a gross breach of her employment contract, and so took herself out of the course of her employment. 

Did resignation take immediate effect?

 
The Workers Compensation Commission of NSW found that while Ms D’s letter demonstrated a clear intention to resign, it did not suggest her resignation was to take effect immediately or that she desired to forfeit her pay in respect of the notice period.

Ms D knew she was required to give two weeks’ notice and intended to resign with effect from the end of the notice period. Pinning the name badge to the letter was intended only to add an ‘element of drama’ to her actions, highlighting her displeasure with the store manager.

The commission was also satisfied Ms D had significant interpersonal difficulties with the store manager and complained of this once in February 2013. It said it was understandable Ms D didn’t notify the sole director of her intention to speak with her face to face because doing so would have been self-defeating.

Specifically, it would have exposed her to the considerable risk that the sole director would contact the store manager, pre-judge the situation in his favour before Ms D’s arrival, and possibly even forbid her to make the journey. Alerting anyone at the store would have given the store manager an opportunity to alert the sole director by phone, with similar effect.
 
The commission was satisfied the purpose of Ms D’s journey was to complain about the store manager’s conduct towards her and to negotiate a solution acceptable to her, including the consensual withdrawal of the letter of resignation.
 
The commission determined there was a causal and temporal nexus between Ms D’s employment and her journey. Her injuries had been sustained during her ordinary work hours while she was attempting to urgently address with her employer the difficulties she was experiencing in her workplace.

The commission was not satisfied that in leaving the store in the hands of a trainee supervisor, Ms D misconducted herself as to take herself out of the course of her employment.

It concluded that Ms D’s injuries suffered in the car accident arose out of and in the course of her employment. She was entitled to an award of weekly compensation at the rate of $936.68 per week in respect of the period 7 May 2013 to 6 July 2015.

A E D v Terrivic Pty Limited [2016] NSWWCC 10 (13 January 2016)
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