A FIFO worker has successfully made a workers’ compensation claim after being assaulted at the local pub even though he was not working at the time.
The employee was employed as a fly-in/fly-out (FIFO) worker and was housed in camp accommodation operated by BHP Billiton Nickel West Pty Ltd (BHP) at Leinster, a remote outback mining town in Western Australia. The Leinster camp included a tavern, which the employee attended during a shift change (after day shift, before night shift).
While socialising at the tavern, he was physically assaulted by another employee. The assault caused the employee to be incapacitated for a period of time, such that he was unable to work. The employee made a workers’ compensation claim which was initially denied by the workers’ compensation regulator on the basis he had not sustained an injury during the course of his employment.
This decision was overturned on appeal by the Full Federal Circuit Court of Appeal (Court of Appeal). Relevantly, it was accepted the injury occurred during the course of employment even though at the time of the incident the employee was not performing work but was at the tavern in a social setting.
The Court of Appeal decided the employee’s attendance at the tavern was an incident of his employment and therefore caught under the workers’ compensation scheme. In making the decision, the Court of Appeal took into account factors such as:
- Leinster is a ‘closed town’, meaning only workers employed or associated with the mining operations or in businesses that support the operations or the town can reside there
- All employees were subject to the ‘Leinster Township and SPQ Village Rules’
- The tavern was 250m away from the employee’s room
- The employer advertised the tavern and other facilities on its website as part of providing information about the living and recreation arrangements at Leinster, with a view to making the working conditions more attractive than they otherwise may have been.
- The ‘FIFO/DIDO Code of Behaviour’ (fly-in/fly-out or drive-in/drive-out) applied at all times while completing the employee’s two-week swing, even when in ‘Company provided accommodation’
- Employees were expected to be fully rested prior to commencing their shift and were not encouraged to drive at night unless necessary, which acted as a disincentive to leaving Leinster during the swing.
In reaching this decision, the Court of Appeal considered the well-established general principle that an interval or interlude within an overall episode of work will be deemed to be within the course of employment if the employer (expressly or impliedly) has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Unless the employee is guilty of misconduct so as to take them outside of their course of employment, any injury sustained in such an interval or interlude is compensable.
It was held that the employee in this case was in Leinster, and at the camp, as an incident of his employment. While in the camp he remained under the control of the employer and he was expected to make use of the facilities provided by BHP, which included the tavern. By operation of the employer’s policies (which discouraged the employee from leaving the camp), the employee was induced to remain at the camp throughout his swing. He was injured at the tavern and, not having himself committed an act of gross misconduct, the injury therefore was deemed to have occurred during an interval in an overall period of work.
While these principles only apply where an employee is engaged in an activity or present at a place at the encouragement of the employer, this decision highlights the need for employers to be mindful of all of the activities they induce or encourage. It is now very clear that even social activities are capable of exposing employers to liability under the workers’ compensation laws for any injury suffered by employees.