Flexible working arrangements presenting new issues for employers

Many employees now have flexible working arrangements, which often involve working from home. The case of Simon Blackwood (Workers’ Compensation Regulator) v Ziebarth [2016] ICQ 005 looks at what can be considered a workplace injury in unusual circumstances.

Mr Ziebarth, the worker, was employed as a Fleet Service Manager at a transport company and was responsible for organising a fleet vehicle whenever a truck broke down. The worker’s contract of employment required him to work at least 55 additional hours per week, if required, and make himself available to be on-call from time to time. The worker was supplied with a work telephone for the purpose of carrying out his employment duties while he was on-call. It was agreed that at the time of the injury the worker was on-call.

At 10 pm on the evening of the injury the worker heard his work mobile ring while he was taking a shower. The worker slipped in the bathroom while trying to get to the phone, which was in his bedroom. The worker had previously been chastised by his supervisor for not answering his work mobile. The worker felt that he needed to answer the phone when it rang because of 'driver safety and public safety'.

The Regulator had rejected the claim but, on appeal, the Queensland Industrial Relations Commission (QIRC) (Ziebarth v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 121) was satisfied that the injury occurred in the course of the worker’s employment. In reaching this decision, the QIRC applied the relevant test as established in Comcare v PVYW [2013] HCA 41, which is:

  1. What was the activity being engaged in at the time of the injury? And
  2. Did the employer induce or encourage the employee to engage in that activity?

The worker was on-call and the relevant activity was the answering of the work mobile (not having a shower). For the second part of the test, it was established that the worker was on-call and he was supplied with a mobile phone that was expected to be answered while he was on-call.

The matter was then appealed by the Workers’ Compensation Regulator to the Industrial Court of Queensland (ICQ) on the following grounds:

  1. The Deputy President erred in adopting a 'broad interpretation' of the activity that resulted in the injury, contrary to the decision in Campbell v Australian Leisure & Hospitality Group Pty Ltd [2015] ICQ 016; and
  2. The Deputy President failed to give adequate reasons.

The ICQ ultimately rejected the appeal.

The ICQ confirmed that the QIRC used the correct test.

The Regulator sought to argue that the worker ought not to have answered his phone because he had to hurry from the shower and his feet were wet.

The ICQ explained that the test is not 'did the employer encourage the employee to engage in conduct which might be dangerous?' The ICQ was quite clear that it was the link between employment and the activity that was important, because workers’ compensation is still paid when the injury is due, in some degree, to inattention on the worker’s own part.

On the second ground of appeal the ICQ examined the reasons for decision. The ICQ confirmed that the correct test was discussed at length in Abbott v Blackwood [2014] ICQ 031, which is: Has a material issue not been addressed or has material evidence been overlooked? The ICQ decision is useful for its review of the relevant tests for determining a work-related injury. In particular, that a worker can contribute to their own injury and still be considered to have suffered a work-related injury. As to the particular facts of the case, the decisive factor was the employer’s expectation that the worker would answer his mobile phone on every occasion it rang while he was on-call.

It is worth emphasising that the QIRC and ICQ were only concerned with whether the worker had suffered a work-related injury in the course of his employment. As the case involved a claim for ‘no fault’ statutory compensation, no issues of negligence arose. In that context, this decision certainly raises concerns for employers whose employees have flexible working arrangements.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 19 April 2016

Author: Kathryn Pattearson