Workplace liability – Why employers need to know about the latest McDonald’s ruling

By Nick Hall | 23 Jan 2019 View comments

Experts are warning that the latest decision from the Industrial Court of Queensland may have sweeping implications for the state’s employers.

Judge Martin last week ruled that a worker at a McDonald’s outlet in Richlands who broke her leg falling off a ladder prior to commencing her shift was entitled to compensation, overturning the original WorkCover decision.

WorkCover had initially ruled that the injury did not occur whilst the worker was on duty, thus there was no interruption to an otherwise continuous period of work.

However, an appeal saw the matter again under consideration, this time producing unexpected results.

The worker revealed that she was required to attend the store 10 minutes before her shift officially started, in which time the injury occurred.

Judge Martin found that the requirement constituted an ‘ordinary recess’, ruling in favour of the appellant.

“Although none of the employees at the restaurant would serve a customer, or cook food, or lift a mop from the time they arrived until their shift commenced, they had, in my view, commenced work,” Judge Martin told the court.

“Their presence at the place of employment at a fixed time before their shift commenced meant that the people they were replacing could leave in a timely way at the end of their shift and there would be no disruption to the efficient conduct of the enterprise.”

The ruling is particularly pertinent as it calls into question employers' consideration of what an ‘ordinary recess’ entails under section 34(c) of the Workers’ Compensation and Rehabilitation Act 2003.

Brenton Allen, lawyer and workplace law specialist at MST Lawyers said that while the term ‘ordinary recess’ is not clearly defined in the Act, it is generally understood to refer to a brief interruption or break in a continuous period of work.

“The decision is consistent with a trend we are seeing at the moment in relation to out of hours conduct and the meaning of the ‘workplace’,” Allen told Inside Franchise Business.

“To use another example in the unfair dismissal jurisdiction of the Fair Work Commission (Colwell v Sydney International Container Terminals Pty Ltd [2018] FWC 174), the Commission found that an employee forwarding sexually explicit content to 19 colleagues from his residence at approximately 10.40pm at night occurred in the course of his employment and constituted a valid reason for dismissal.”

The wider implications of the ruling are still yet to be felt, however Allen suggests employers must be aware that the definition of a ‘workplace’ can extend outside the physical parameters of a premise.

“It is clear that the ‘workplace’ is not necessarily confined to the explicit work period stated on a roster or the physical address of an employer’s premises,” Allen said.

“In view of this, employers should consider; have they clearly delineated the boundaries of the workplace to their employees (e.g. through an employee handbook)? If areas within the employer’s physical premises are off limits – can they prove this has been clearly communicated to employees? Are these prohibitions enforced?”

Allen advocated proactive diligence on the employer’s behalf, in order to ensure protection on both sides of the workplace equation.  

“Be mindful of employee conduct that is acquiesced to – tomfoolery at ‘after work drinks’ can have a range of legal ramifications tied to OHS and workers compensation if an employee is injured,” Allen said.

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