An employer was found liable for the injuries sustained to a worker who had not signed any engagement for work at the time of the incident.

In Issue

  • Whether the worker was entitled to compensation for the injuries she sustained ‘in between’ contracts.

The Background

Ms Susan Sutherland was a PhD student at the University of Canberra (UC). Ms Sutherland also regularly provided academic services for UC under sessional contracts of employment.

On 15 January 2013, Ms Sutherland was at UC for two meetings, the first to discuss her potential facilitation of a unit titled ‘Professional Practice in IT’ (PPIT) for the coming semester, and the second to discuss non-payment of fees for a lecture she previously delivered in 2012. As at 15 January 2013, Ms Sutherland was under a sessional contract for the period of 6 August 2012 to 27 February 2013, however her sessional hours of work for this contract had been completed in December 2012.

After attending her first meeting, Ms Sutherland went to the refectory to buy lunch and fell while descending a set of concrete steps. Ms Sutherland sustained injuries to her right fibula, both shoulders and upper arms, and both knees and lower legs.

On 20 February 2013, Comcare accepted liability for compensation for Ms Sutherland’s injuries pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth). On 12 July 2016, Comcare conducted a reconsideration of the decision (based on additional evidence) and revoked its acceptance of liability.

Comcare held the view that Ms Sutherland was not an employee at the time of the incident and that her injuries did not arise out of, or in the course of, her employment. Comcare reached this conclusion on the basis that Ms Sutherland had completed her prior contractual obligations, and there was no new contract in place; she had not attended UC for any timetabled engagement, and her required hours of tutoring, marking and other academic services had already been completed by December 2012.

The Decision

The AAT found that on the date of the incident Ms Sutherland was a UC employee. Ms Sutherland attended UC for the purpose of work related meetings. Even though the duties under the previous sessional contract had ended, the period of the contract was still current, and the evidence demonstrated that Ms Sutherland had done work preparatory to the PPIT unit in the expectation of a further sessional contract being entered into. Prior to the incident occurring, Ms Sutherland was doing as her employer required – that is, she was at UC to facilitate the PPIT unit within a relatively constrained time frame. The second meeting related to payment under the contract which did not expire until 27 February 2013, and was also a work related activity. Ms Sutherland going to buy lunch was in the course of an ordinary recess during her employment.

The AAT set aside Comcare’s decision and decided that Ms Sutherland was entitled to compensation for the injuries which occurred in the course of her employment with UC.

Implications for you

The decision reminds employers that, even where a worker has not (yet) signed a contract for engagement, he or she may still be acting in the course of his or her employment.

Sutherland and Comcare (Compensation) [2017] AATA 2596