In the recent decision of Krleski v Simon Blackwood, the meaning of ‘day’ and the impacts of that meaning were examined.[1]  This decision was an appeal of the Deputy President’s decision from the Queensland Industrial Relations Commission.

In this Alert, Senior Associate Scott Macoun and Solicitor Abbey Wilkinson discuss the case further. 

Key points

  • The meaning of the word ‘day’ for the purposes of section 34 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) is a period from one midnight until the next.
  • This ordinary meaning of the word ‘day’ applies regardless of the type or hours of work that a worker undertook.

Facts

The case involved a worker employed at the Daunia Mine, whose work cycle was 10 days on and 4 days off, with ordinary working hours from 6:30am until 5:00pm.  Because of this work cycle and the distance from the site to the worker’s usual place of residence, he was provided with accommodation at a workers’ village (operated separately to the mine) nearby.

On 12 April 2012 the worker undertook a normal work day, returned to the village, had dinner, attended the gym and, presumably, returned to his room.  The worker was last seen at about 9:15pm that night.  On the morning of 13 April 2012, a co-worker arrived at the worker’s accommodation to pick him up, but could not wake him. It was not until the evening of 13 April 2012 that the worker was seen again, when he was found passed out, having suffered from multiple organ impairment and severe brain injury.  No evidence was available as to the likely cause of the worker’s injuries.

Although it was not able to be determined as a matter of certainty when the worker actually suffered the injury, based on the information available, the Deputy President found that the injury occurred sometime after 9:30pm on 12 April 2012 and before 4:30am on 13 April 2012.

Decision

In determining whether the worker could make a claim under the WCRA, the Deputy President had to consider both sections 32 and 34 of the Act.  The worker’s injury did not fall within section 32 and it was therefore necessary for the court to determine if the injury fell within an exception in section 34. 

The meaning of the word ‘day’ was relevant to the court’s interpretation of section 34.

Section 34(1)(c) provides as follows:

"an injury to a worker is taken to arise out of, or in the course of, the worker’s employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker’s employment.....while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themself to an abnormal risk of injury during the recess’ (our emphasis)." 

As the worker sought to rely on section 34(1)(c), there were two questions that the Deputy President needed to answer:

  • Did the event happen on a ‘day’ on which the worker had attended the place of employment; and
  • If it did happen on such a ‘day’, did it occur while the worker was ‘temporarily absent from the place of employment during an ordinary recess’.

Unsurprisingly the worker argued that a ‘day’ in his situation should be regarded as each 24 hour period from the time he commences work until he completes his cycle of 10 shifts (presumably referring to the fact that he essentially stayed on site and worked 10 days on 4 days off).  The Deputy President did not agree with the workers reasoning and adopted the ordinary meaning of ‘day’, being the period that begins with one midnight and ends with the next.

Therefore, the President (on appeal) confirmed the Deputy President’s decision was the correct one; that in the absence of any evidence as to the time of the injury, the worker had not discharged the onus of showing that the injury occurred on a day on which the worker attended at the place of employment.  In effect, because the worker's injury may have occurred after midnight on 12 April 2012, and as he did not attend work on 13 April 2012, the injury may have occurred on a day that the worker did not attend work. 

The issue of whether there was a temporary absence (the recess question outlined above) did not require consideration, as the worker did not satisfy the first part of the test.