Bartier Perry successfully appealed the Commission Presidential Member’s decision in regard to connection between employment and injury which occurred during two discrete periods of employment.
In this bulletin, we discuss the Court of Appeal decision of 4 August 2015 in the case of Pioneer Studios Pty Ltd v Hills  NSWCA 222.
The worker attended a party organised by a co-worker and two of his flatmates (unrelated to the employer) to celebrate their birthdays and incidentally the party was also to farewell the co-worker who was leaving the employer. The employer made no financial contribution and had no involvement in the organisation or promotion of the party, which was under the control of the co-worker and his two flatmates.
The worker says she attended the party because she was encouraged and/or induced to attend the party and thought she could make an impression on the employer by meeting any clients and co-workers who attended the party. The employer denied the worker was encouraged, but agreed he enquired of the worker whether she was attending the party. The employer also denied the worker was told it would be an opportunity to meet clients. The party took place at the employer’s premises.
The party commenced on a Saturday evening and the worker suffered injury in the early morning hours of Sunday.
In 2011 a Senior Arbitrator of the Commission found the injury did not arise in the course of employment pursuant to section 4 of the 1987 Act and employment was not a substantial contributing factor to the injury pursuant to section 9A of the 1987 Act. That decision was overturned by a Presidential Member of the Commission which was later set aside by the Court of Appeal in 2012. Special leave application to the High Court was refused and the matter was remitted back to the Commission.
Subsequently in 2014, another Presidential Member of the Commission determined the worker’s injury arose out of her employment and in the course of her employment and also found her employment was a substantial contributing factor to the injury despite there being no further evidence tendered since the prior proceedings. The employer appealed this decision.
Court of Appeal findings
In a majority decision of the Court of Appeal, Justice Basten JA with Justice McColl JA agreeing, set aside the Deputy President’s decision of 2014 and upheld the Senior Arbitrator’s determination of 2011.
The Court of Appeal distinguished between injuries which occur during an interval or interlude in an overall period of employment [such as camping cases dealt with in Hatzimanolis v ANI Corporation Limited (1992) 137CLR 473 and Comcare v PVYW (2013) 250CLR 246] and an injury which occurs during an interval between discrete periods of employment where the worker usually carries out his/her duties at a permanent location. The latter was the scenario of this case. Hence, the Court observed the injury in this case did not arise out of or in the course of employment.
The Court followed the High Court decisions in Hatzimanolis and PVYW where it was found an injury occurring during an interval between periods of actual work in an overall period of employment is more readily perceived as being within the conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality. The Court of Appeal stressed this distinction needs to be considered in determining the connection with work.
In dealing with the issue whether the injury arose in the course of employment, the Court stressed the objective characterisation of the employer’s requirements and expectations of the employee at work was the test to determine whether the injury arose in the course of employment rather than the employee’s subjective impression of what she thought was required of her.
The Court of Appeal observed the employer’s enquiry as to whether a worker intends to attend the party may be treated as encouragement or an inducement, even if it was not so intended, but did not consider this was sufficient to turn a party into an employment activity. The Court held the fact the worker was encouraged or even induced to attend the party was not sufficient to render it part of her employment.
In dissent, Justice Simpson found the Deputy President made no errors in law and that his findings were open to him on the evidence before the Commission, indicating she would have rejected the employer’s appeal.
The nature and scope of employment and work related activities are the key factors which determine cases such as this. The factual circumstances surrounding each injury should be properly investigated to consider whether the injury arose out of or in the course of employment.
Where an injury occurs during two discrete periods of employment (after ordinary working hours), it is not readily perceived as being within the course of employment.
Not every activity which an employer may encourage or induce an employee to undertake will result in the employee acting in the course of his or her employment by acceding to such encouragement or inducement.
This decision by the Court of Appeal affirms the principle ‘in the course of employment’ is to be determined by the employer and the worker’s perception of what he/she thought was required of him/her in her employment was irrelevant.
Click here to read the full decision of the Court of Appeal decision in this case of Pioneer Studios Pty Ltd v Hills  NSWCA 222.