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Workers compensation case briefs

A factory worker squirted a syringe of water into the eye of a fellow worker who was driving a forklift. It was a hot day and there was a general practice of spraying water around at the workplace on such days. The fork lift driver reported the incident to his supervisors and, as a result, the first worker was summarily dismissed for serious and wilful misconduct. At the time he was participating in a rehabilitation and return to work program with his employer, under the direction of WorkCover (SA). WorkCover then ceased the man's weekly payments. This case was judicial determination of the cessation of payments under a sec 36 notice, as provided in the Workers Rehabilitation and Compensation Act 1986.

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Water play not serious breach

A factory worker squirted a syringe of water into the eye of a fellow worker who was driving a forklift. It was a hot day and there was a general practice of spraying water around at the workplace on such days. The fork lift driver reported the incident to his supervisors and, as a result, the first worker was summarily dismissed for serious and wilful misconduct. At the time he was participating in a rehabilitation and return to work program with his employer, under the direction of WorkCover (SA). WorkCover then ceased the man's weekly payments. This case was judicial determination of the cessation of payments under a sec 36 notice, as provided in the Workers Rehabilitation and Compensation Act 1986.

The employer had issued guidelines to all employees which prohibited unsafe behaviour, horseplay and practical jokes. The guidelines warned that participation in such activities would result in disciplinary action including instant dismissal. It was also argued that the worker's conduct risked serious harm to his colleague.

The Workers Compensation Tribunal (SA) found that, on clearly established legal principle, the worker's conduct did not justify dismissal for serious and wilful misconduct. His behaviour should have been looked at in the context of the working environment. The Tribunal then looked at the issue of whether the worker's conduct was a breach of mutuality as provided in sec 36(1) (f) of the Workers Rehabilitation and Compensation Act 1986. The judge followed the reasoning in Mitsubishi Motors Australia Ltd v Jones (unreported) 10 July 1992 S 3514 that, looking at the worker's conduct in its totality, it could only be considered a breach of mutuality if '…it manifested such a degree of lack of cooperation with the employer, and such a disregard for the proper relationship which ought to exist, and must exist, as between employer and employee…'. The Judge ordered that the sec 36 Notice be set aside. Pligl v WorkCover/ Allianz Australia (Carr Fastener Holdings Pty Ltd) [2002] SAWCT 8, 11 February 2001, Thompson ADP.

Song and dance over broken foot

An administrative assistant at a community health centre fractured her foot after participating in a stage performance with colleagues at a fund raising concert. The Adelaide Central Community Health Service, her employer, denied liability for workers compensation, claiming that the injury did not occur in the course of, or arising out of, her employment.

The Workers Compensation Tribunal (SA) found that the concert was a social occasion. It then considered sec 30(4) of the Workers Rehabilitation and Compensation Act 1986, which states:

'30(4) However, a disability does not arise from employment if it arises out of, or in the course of, the worker's involvement in a social or sporting activity, except where the activity forms part of the worker's employment or is undertaken at the direction or request of the employer.'

The injured woman was not directed to attend the social function, however, several general requests were made by email and fax by the woman's direct supervisor for staff to enthusiastically support the fund raising night. The purpose of the function was to 'raise money for a purpose which was within the employer's ambit of concern. It was an aim with which the employer sympathised and supported.' In view of these factors, the Tribunal found that the woman attended the function at the request of the employer and her injury was hence compensable. Barlow-Coard v Adelaide Central Community Health Service [2002] SAWCT 7, 8 February 2002, Thompson ADP.

 

 
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