When is a worker on an authorised recess?

A worker sustained injuries in a motor vehicle accident on his way to see a doctor. Was he entitled to workers’ compensation for those injuries?

In issue
Whether an injury sustained was deemed compensable under s46(1)(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) because it arose out of, or in the course of, employment during an ‘authorised recess’.

The background
The worker was employed as a maintenance operator by Melbourne Door Manufacturing Pty Ltd. He worked a 7:30am to 4:00pm shift. On 7 April 2016 at about 11:30am, he went to see the managing director, complaining of feeling unwell and that he wanted to see his doctor. This was in the context of him being verbally abused by a manager at work. Leave to see the doctor was approved. It was unclear whether he would be returning to work that day or not.

He was involved in a motor vehicle accident on the way to see the doctor and sustained physical injury to his neck and shoulder.

He claimed weekly compensation from his employer for a psychiatric injury relating to bullying allegedly occurring in the course of his employment, and for a neck and shoulder injury arising out of the motor vehicle accident. His claim was rejected by the Victorian WorkCover Authority (VWA).

The decision at trial
The worker commenced proceedings against the VWA in the Magistrates Court. It was held that all of the claimed injuries occurred in the course of employment.

The issues on appeal
The VWA appealed against the finding of the Magistrate with respect to the neck and shoulder injury. The issue was the Magistrate’s application of s46(1)(a) which deems a worker’s injury to have arisen out of or in the course of employment if the injury occurs while the worker is ‘temporarily absent’ during ‘any authorised recess’.

Was he ‘temporarily absent’ and was he on an ‘authorised recess’?

The decision on appeal
The appeal was allowed.

The absence from work was authorised, but he was not on an ‘authorised recess’ and the deeming provision under s46 did not apply. For an authorised absence to be a recess, there must have been a requirement or expectation that the worker would return to work at the time of authorisation.

Implications for you
Circumstances can change. Here, the timing of the authorisation was considered decisive in respect to whether it was a recess, or the end of the working day. At that time there was no requirement or expectation that the worker would be returning to work on that day.

Source: Lexology – Barry.Nilsson. Lawyers – Jim Tealby

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