Qantas Airways Limited v Q-COMP and John Kennerley (WC/2011/150)
In Qantas Airways Limited v Q-Comp and John Kennerley (WC/2011/150) the Industrial Relations Commission (IRC) and the Industrial Court of Queensland (ICQ) were asked to consider whether Mr Kennerley (worker), a flight attendant, sustained injuries arising out of or in the course of his employment when he was involved in a motor vehicle accident while attending to the renewal of his US Visa on a day off work on 10 March 2010.
At first instance, the self-insurer, Qantas Airways Limited (Qantas), rejected the worker’s application for compensation. He sought a review by Q-Comp, who set aside Qantas’ decision. Qantas then appealed to the IRC. Qantas was successful. The worker appealed to the ICQ which ultimately found in his favour.
The worker’s supervisor gave the following evidence:
- it was the responsibility of the employee to maintain a current US Visa;
- there was no US Consulate in Brisbane so Qantas provided a return airfare for its employees from Brisbane to Sydney;
- whilst employees are required to obtain their US Visa in their own time, Qantas made a payment of six hours pay in recognition of the effort made to obtain the Visa;
- Qantas made appropriate flight arrangements for its workers to renew their US Visa in Sydney;
- Qantas reimbursed crew members their expenses incurred;
- Qantas provided a letter of introduction to the US Consulate relating to Visa renewal; and
- crew members could not undertake the US flight schedule without a current US Visa.
At the time of the motor vehicle accident on 10 March 2010, the worker lived on the Gold Coast but was based in Brisbane for work. The motor vehicle accident occurred approximately 500 metres from his home. He commenced a journey to Brisbane to stay at a friend’s (Foster’s) house with the intention of catching a 5:00am flight on 11 March 2010 to Sydney to renew his US Visa. He had an appointment with the US Consulate at 8:45am on 11 March 2010.
Under cross-examination, the worker confirmed he performed no work for Qantas on 10 March 2010 and the only task he would have undertaken on 11 March 2010 was to renew his US Visa. He had known Foster for about 22 years. He did not accept the visit to Foster’s residence was for social purposes despite arrangements for the worker to join Foster and his partner for dinner on 10 March 2010. He said he had only ever stayed at Foster’s residence one other time, about 15 years previously, and he would not have travelled to Foster’s residence unless he was required to travel to the US Consulate the next day.
The only issue to be determined was whether the worker suffered an injury as defined in section 32(1) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (Act). That section states:
‘(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
(2) However, employment need not be a significant contributing factor to the injury if section 34(2) or 35(2) applies …’
On appeal to the IRC, Qantas argued it could not be said that ‘employment is a significant contributing factor to the injury’. It argued the employment was ‘merely the setting or background in which the injury occurred’ and it could not be said the worker’s employment was the ‘real effective cause’.
The IRC was drawn to a number of authorities which it said indicates that some cause or connection must exist between the accident (injury) and employment. In this matter the connection between the accident (injury) of 10 March 2010 and employment was stated to be more likely of a ‘casual’ rather than ‘causal’ connection. It said it is difficult to accept the relationship of the US Visa renewal process is more than that of ‘casual’ relationship to employment. The worker was not undertaking professional work associated with his employment. Therefore it was concluded his personal injuries did not arise out of or in the course of his employment.
The appeal to the IRC was allowed and the decision of Q-Comp set aside and in its place a finding that the claim is not for acceptance was made.
The motor vehicle accident was admitted to have occurred at the worker’s fault. He turned right into the path of the oncoming vehicle that had right of way. It was also submitted by Qantas before the IRC the worker had been driving dangerously which disentitled him from a claim because he was driving in a manner that made him ‘guilty of gross misconduct taking him outside the course of employment’ in accordance with section 130 of the Act. The worker refuted the suggestion and said the accident occurred due to a momentary lapse of care. Given the finding that the worker’s personal injuries did not arise out of or in the course of his employment this issue was not further considered by the IRC.
The matter went before President Hall of the ICQ on appeal by the worker. President Hall disagreed with the IRC’s decision saying it was not the point that the worker did not perform any work for Qantas on 10 March 2010.
The question is ‘whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties’.
The employment purpose of renewing the US Visa was operative in the arrangement to stay at Foster’s residence and the worker’s presence on the road.
The IRC’s decision was set aside and a declaration made that the worker’s injuries were suffered in the course of his employment and his employment was a significant contributing factor to the injury. The question of whether section 130 of the Act operated was remitted back to the IRC to consider.
A copy of the Judgment can be found here.