Demasi and Comcare (Compensation)

[2016] AATA 644

Demasi and Comcare (Compensation) [2016] AATA 644 (26 August 2016)

Division	GENERAL DIVISION
File Number(s)	2014/5663
Re	Maryanne Demasi
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President S E Frost
Date	26 August 2016
Place	Sydney

The Tribunal affirms the decision under review.

.........................[sgd]...............................................

Deputy President S E Frost

CATCHWORDS

WORKERS COMPENSATION – claim for compensation – applicant working from home on day of injury –  applicant injured whilst running, during a break from work –  whether injury arose out of, or in the course of, employment – meaning of place of work – whether home is the applicant’s place of work – working from home accepted practice – employer approval to work from home on day of injury – home found to be applicant’s place of work – whether injury sustained when applicant was temporarily absent from work during an ordinary recess in that employment – flexible work arrangements – meaning of ordinary recess – meaning of ordinary – whether break was an ordinary recess from applicant’s employment – plain reading of legislation – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5, 6 (1)(b)

CASES

Drummond v Drummond [1960] VR 462

Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318
Landers v Dawson (1964) 110 CLR 644
Lillyman v Pinkerton (No 2) (1982) 71 FLR 135
Re Muthubalasuriyar and Comcare [2013] AATA 147
Yazgi v Permanent Custodians Limited [2007] NSWCA 240

REASONS FOR DECISION

Deputy President S E Frost

26 August 2016

INTRODUCTION

1. Maryanne Demasi is employed by the Australian Broadcasting Corporation (ABC), as a producer and presenter for the television program Catalyst.  Her job requires her to work not only in the ABC’s offices in Ultimo but also ‘on location’, supervising filming, conducting interviews and the like.  Sometimes she also works at home.

2. Two years ago, on a day when she was working at home, Ms Demasi took a break from her work and went for a run.  Part way through her run, she tripped on an uneven surface and landed awkwardly.  She broke her right hip, which had to be surgically repaired.  She claimed compensation on the basis that the injury she suffered arose out of or in the course of her employment.  Comcare initially denied liability, and confirmed that position on review.

3. Ms Demasi has applied to the Tribunal for review of that decision.

   THE ISSUE FOR DETERMINATION

4. Although Comcare accepts the fact and the circumstances of Ms Demasi’s injury, it denies that it is an injury ‘arising out of, or in the course of, [Ms Demasi’s] employment’ – the expression used in s 5A(1)(b) of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”). If the injury answers that statutory description, then Ms Demasi will be entitled to compensation; if not, she will not.

5. Section 6(1)(b) of the SRC Act throws light on the expression used in s 5A(1)(b). It provides:

   6  Injury arising out of or in the course of employment

   (1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

   …

   (b)while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or

   …

6. Ms Demasi contends that:

   ·on the day of her injury, her ‘place of work’ was her home; and

   ·while she was out running, she was ‘temporarily absent’ from that place of work, ‘during an ordinary recess in [her] employment’.

7. Comcare takes issue with both of those contentions.

   THE FACTS

8. The facts of this matter are essentially not in dispute.

9. It was 'accepted practice' for ABC reporters and presenters to occasionally work from home, depending on the work to be undertaken at the time. Work such as undertaking research, and planning and scripting stories could be done from the quieter environment of a person's home using a phone and computer. This practice was 'not unusual', and arrangements were made by employees communicating to their supervisor or manager their intention to work from home on a particular day. This communication could be either written or oral.

10. Ms Demasi 'often' worked from home, and on many occasions worked beyond her standard hours whether at home, at ABC’s studios or on location. Ms Demasi estimated that she worked at home approximately 30 per cent of her total work time.

11. On 15 January 2014, Ms Demasi decided to work from home as, given the time of year, there were few people in the office. She had previously communicated with her manager, Ms Arnott, her intention to work from home to undertake research and conduct a scheduled phone interview that day.

12. Ms Demasi's plan for the day was to prepare for the telephone interview scheduled at 9:30am, conduct that interview, take a break by going for a run, consolidate her notes  from the interview for use in a brief, and then prepare for the next interview she had either later that day or the next day.

13. Ms Demasi began work at approximately 7:30am, doing research and checking her emails. At 8:56am Ms Demasi received an email from her work colleague regarding arrangements for a later interview by phone with a person overseas. Although no emails were sent from Ms Demasi's work email that morning, she did reply to the incoming email some eight minutes later from her personal account.

14. When Ms Demasi called to conduct the scheduled interview at 9:30am, the interviewee stated that she had another appointment and had forgotten about the interview. She asked Ms Demasi to call her back at 10:30am.

15. Ms Demasi, who was already in her exercise attire so that she could go for a run when the  opportunity arose, then decided to take an early break in order to take a jog at around 9:45am along the Bay Run, a running track close to her home and approximately 7km in length. Ms Demasi had exercised on this route before, and envisaged that she would return in sufficient time to carry out her interview.

16. According to her compensation claim form, at 10:15am Ms Demasi tripped and dislocated her right hip and fractured the femoral head. At 10:30am she was transported to Royal Prince Alfred Hospital.

17. Ms Arnott, Ms Demasi’s manager, gave evidence that she was aware that Ms Demasi would regularly jog during her recess breaks. She said in her witness statement:

    I was aware that [Ms Demasi] would often exercise during the work day, in between her schedule. This was normal practice, accepted, and l consider it relevant to her employment.

    There was never any requirement by her or other employees to seek specific permission to exercise during working hours.

18. Ms Demasi stated that her manager was aware that recess breaks would need to be taken at a convenient time during the working day, having regard to interview and other work commitments.

19. Formally, Ms Demasi is categorised as a ‘Schedule A (Rostered)’ employee under the ABC Enterprise Agreement, which specifies in clause 27.2.1 that she is to work an average of 38 ‘ordinary duty hours’ per week, subject to limitations as to the number of days she can work over a two-week and a four-week cycle. 

20. Employees are required to complete weekly timesheets, detailing their periods of work and breaks.  Some samples of Ms Demasi’s timesheets were provided to the Tribunal as Exhibit R4.  They show that in the days and weeks before her injury, Ms Demasi generally recorded her breaks as having been taken between 1 and 2pm. In her oral evidence, Ms Demasi indicated that her timesheets were not an accurate reflection of her work day, because she had an erratic schedule and would complete the timesheets merely as a matter of formality.

    ISSUE 1 – ON THE DAY OF HER INJURY, WAS MS DEMASI’S HOME HER ‘PLACE OF WORK’?

21. Both parties accept that Ms Demasi was performing work within the scope of her employment at her home on 15 January 2014. Both even agree that it was an accepted practice for ABC employees to work from home on occasions, and that Ms Demasi's manager and team were aware that she worked from home, including on the day of her injury. The parties diverge, however, on whether Ms Demasi's home can be considered her 'place of work' for the purposes of s 6(1)(b) of the Act.

22. 'Place of work' is defined in s 4 of the SRC Act in the following way:

    place of work in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.

23. That definition has little direct relevance to this case since it is clear that Ms Demasi was not required to attend her home to carry out her duties.  But it has some indirect relevance because it clarifies that an employee’s ‘place of work’ is not restricted to a fixed physical location where an employer carries on business in the traditional sense.  Many employees in the modern workforce do not carry out their duties in one single, fixed location.  They can instead be very mobile, either travelling regularly between different fixed locations owned or occupied by the employer, or moving from place to place with no intermediate or ultimate destination except where their services may be required from time to time.  Police officers, travelling salesmen, tow truck drivers, surveyors, builders, architects and Tax Office auditors are only a few of the many examples of workers who operate like that.

24. Then there are the office workers, whether employed in the public or private sector, who take advantage of more flexible work arrangements by working sometimes at the employer’s premises and sometimes at home.  Often, an employee will work at home as a matter of convenience – to avoid interruptions, perhaps; or to care for a sick family member but still get work done at the same time; or to make it easier to get children to and from childcare or school.  Sometimes the work can be carried out just as well at home as in the office, sometimes even better.  Sometimes there is a trade-off between efficiency and employee satisfaction.  These are some of the realities of the workforce in 21^st century Australia.

25. In some ways Ms Demasi straddles these categories of employee.  When she is ‘in the field’, she simply follows the work, much like the police officer or the tow truck driver.  On other occasions, such as on the day in question, it is not so much necessity as convenience that dictates where she will perform her duties.  She could just as easily have conducted the interview in the ABC’s offices as at home – but does that matter?

26. Ms Demasi submits that an employee’s place of work is any location where she or he carries out their work.  Given the flexible nature of work environments these days, the expression must (according to her submission) include anywhere an employee is able to, and does, carry out work functions, such as answering a phone call or responding to an email.  So, she says, her home was her ‘place of work’ at 7:30am on the day in question, since that is when she started checking her emails, or at least it had become her ‘place of work’ by 8:56am, when she received the email from her work colleague, as mentioned above.

27. Ms Demasi also contends that as she had the approval of her manager, she was not doing anything improper by working from home. The fact that her employer could have stopped her from working from home but did not, strongly supports the proposition that she was indeed at her place of work.

28. The Respondent took issue with the Applicant’s submission on the breadth of the concept of a person’s ‘place of work’. The Respondent submitted that the inclusive statutory definition probably does not ‘extend the ordinary meaning of the defined term so much as […] specify that particular matters will fall within the definition that might otherwise be in doubt' (see, for example, Yazgi v Permanent Custodians Limited [2007] NSWCA 240, referring to Lillyman v Pinkerton (No 2) (1982) 71 FLR 135).

29. Instead, the Respondent stated that such a broad reach of the expression, as proposed by the Applicant, could mean that almost anywhere in the world would be a ‘place of work’, thus depriving the expression of any real meaning.  The expression could extend to include any public area, a result that would be contrary to the object and purpose of the section – namely, that there needs to be a sufficient nexus between employment and an injury to entitle an employee to compensation.

30. The Respondent referred in its written submissions to what it described as ‘the leading decision in relation to the phrase “place of work” in the SRC Act’ – Northrop J’s decision in Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318 – where his Honour noted at 326 that it will largely depend on matters of fact and degree but:

    [i]n normal understanding the place of work is the place at which an employee attendance for work as an employee.  It is not to be limited to the office or particular workshop where the employee performs duties.

31. The Respondent also referred to the following comments of Senior Member Taylor SC in Re Muthubalasuriyar and Comcare [2013] AATA 147 at [52]:

    It follows from this decision [Comcare v O’Dea], and the authorities to which it refers, that the expression “place of work” conveys, in its ordinary meaning not only the direct and immediate physical location that the person occupies whilst performing work activities, but also the general site occupied by the employer.  But that ordinary meaning has its most appropriate application where employer’s property limits, powers of control and the practical manifestation of those powers effectively coincide – as they did in the case of the Army post and barracks in O’Dea.  It has a less compelling application both where the employer asserts practical control over premises it does not own, or where the only use it makes of part of its premises is to permit unrestricted public access.  In situations of that kind determining whether the particular location is within the employer’s place of work requires taking into account the combined realities of: (i) actual control, (ii) public, private or exclusive, access, (iii) actual use, and (iv) physical location, including proximity to the employer’s actual workplace environment: see Re Hughes and Comcare [2010] AATA 775 at [32]; Re McKenzie and Comcare [2011] AATA 924 at [52]; Re Green and Comcare [2011] AATA 639 at [80]. (Emphasis added in the Respondent’s citation)

32. The Respondent went on to submit:

    [W]here the employer’s property limits, powers of control and the practical manifestation of those powers do not coincide a practical, common sense approach has to be taken to determine whether the place in question has a sufficient nexus with employment to be properly classified a ‘place of work’.  The respondent suggests matters such as the following are relevant to determining whether the applicant’s home constituted her ‘place of work’:

    a.Did the ABC pay for any equipment to set up a home office or provide any additional support for the work from home environment?

    b.Was a workplace inspection carried out?

    c.Is there a formal policy surrounding work from home and was that policy complied with?

    d.What, if anything, distinguishes the applicant’s home from any other place (such as a café or park) where the applicant might carry out any of the duties of her employment.

    e.The specific terms and conditions of the applicant’s employment, as evidenced in any contract of employment, enterprise agreement or relevant awards.  The ABC’s Enterprise Agreement (2013-2016) and ‘Telework Guidelines’ make clear that the following documents should have been completed if the applicant was in fact undertaking approved work from home:

    -    a Flexible Working Hours Agreement for the applicant

    -    a written arrangement(s) relating to the undertaking of regular home based work or other ‘telework’

    -    a Workstation Self-Assessment Checklist completed by the applicant

    -    a Work, Health and Safety Risk Assessment for home based work or other ‘telework’

33. The Respondent submitted that the apparent lack of completed documents of those kinds strongly militated against Ms Demasi’s home being considered a ‘place of work’ within the meaning of s 6(1)(b) of the SRC Act.

    Consideration

34. I do not accept that the concept of ‘place of work’ is as broad as Ms Demasi contends.  If it were, then the required nexus with employment activities, towards which the expression is evidently directed, would be practically limitless and, to that extent, quite meaningless as a qualifier for liability.

35. In this particular case, I accept that Ms Demasi had an approved, albeit irregular, practice of working from home to carry out research or conduct interviews. I accept that on the day in question she carried out work duties at her home before leaving to go for her run, and that her manager was both aware of and had approved her working in that way.  One of her colleagues corresponded with her about interviews and arrangements that were to occur that day or in the near future and knew that she was online and contactable that morning.

36. I also accept that the ABC studios in Ultimo are not Ms Demasi’s only ‘place of work’.  I note the Respondent’s concerns about the lack of formal written arrangements covering Ms Demasi’s working at home.  However, the question before me is not whether Ms Demasi's practice complied with the ABC's formal procedures, but rather the practical reality of the circumstances.  It is not an entirely satisfactory state of affairs that, on the one hand, the employer acknowledges, and at least informally approves, the fact that Ms Demasi works at home from time to time, and yet on the other hand the Respondent seeks to rely on the absence of documentation as somehow nullifying that reality.  The simple fact is that the employer and employee had an arrangement in place that was well understood by both of them, even if it was not strictly in compliance with the formal requirements.  Ms Demasi had told her manager that she would be working from home that day.  Her manager was not troubled by that arrangement. 

37. I am satisfied that on the day in question, Ms Demasi’s home was her ‘place of work’ for the purposes of the Act.

    ISSUE 2 – WAS MS DEMASI TEMPORARILY ABSENT DURING AN ‘ORDINARY RECESS’ IN HER EMPLOYMENT?

38. Neither the word ‘recess’ nor the phrase ‘ordinary recess’ is defined in the SRC Act, but they have both been the subject of judicial consideration in a workers compensation environment. In Drummond v Drummond [1960] VR 462, the Full Court of the Supreme Court of Victoria considered a provision in the Workers Compensation Act 1951 (Vic) that was relevantly identical to s 6(1)(b) of the SRC Act. At 463-464 the Court said:

    The word ‘recess’ in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea or ‘smoko’. It is a period of rest incidental to a period of labour ...

39. Then, dealing with the meaning of the word ‘ordinary’ in the composite expression ‘ordinary recess’, the Court said at 464:

    There is room for some difference of opinion as to its meaning.  It may mean usual in the particular type of employment; it may mean usual in the employment of a particular worker; it may mean a period ordinarily known as a recess.  We do not think that the fact that a particular worker usually has his Saturday afternoon free but works on Saturday evening, or that this is usual in a particular industry, has the effect of making Saturday afternoon an ‘ordinary recess’.  The word ‘ordinary’ is more apt to convey the idea that the period in question is one which would ordinarily be described as in recess. …

1. In Landers v Dawson (1964) 110 CLR 644, another case dealing with the Victorian legislation, the High Court upheld the approach taken in Drummond v Drummond.  The worker was a baker who had an interval between a bread delivery and what he claimed would be a resumption of his work later in the day.  During the interval he went swimming and injured himself.  The plurality (Kitto, Taylor, Menzies and Owen JJ) said at 650-651:

   On this aspect of the case, the question is whether, on the facts as found, it was open to the Board to hold that when he was injured the appellant was temporarily absent from his place of employment ‘during an ordinary recess’. The Full Court (Lowe, Dean and Pape JJ) was of opinion that that ultimate finding was not open. Their Honours referred to and relied upon Drummond v. Drummond (1960) VR 462 in which it was said, at pp 463-464 that s 8(2)(a) was ‘intended to cover injury sustained during a break in work, such as for morning or afternoon tea, or lunchtime, or a “smoko” or similar break normally referred to as a “recess”. … The word “recess” in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea, or “smoko”. It is a period of rest incidental to a period of labour in its general acceptation. The recess is something in the nature of an interval between two or more periods of work in the normal day.’ With that statement we agree and, indeed, counsel for the appellant made no criticism of it. His submission was that, as applied to the facts of the present case, the interval between the last delivery of bread at Peterborough and the time ‘after lunch’ or ‘in the afternoon’ when the appellant would have been required to begin his work mixing dough could properly be regarded as a ‘recess’ of the kind to which the judgment in Drummond's Case (1960) VR 462 referred. The argument seemed to us to proceed upon the basis that since the appellant was available for duty for twenty-four hours of the day, any break in that period, whether for sleep or food or for activities such as swimming, was a ‘recess’ and that, if allowed as often as the appellant’s swimming at Peterborough was allowed, it was an ‘ordinary recess’. But that, we think, is unsound. The appellant was not working a continuous twenty-four hour day interrupted by relatively short breaks for refreshment or relaxation. During the substantial intervals of the day and night when he was not required to work, his time was entirely his own. He was off duty and could use his off duty periods for any purpose that he thought fit. The only effect of his getting the respondent’s permission to go swimming was that a period was defined within which he would not be expected to be available for work at the bakery. It is unnecessary to attempt to define exhaustively the meaning of the words ‘ordinary recess’ in the context in which they appear in the Act; it is sufficient to say that we agree with their Honours in the Full Court that the appellant’s injury could not reasonably be held to have occurred during an ‘ordinary recess’.

2. Windeyer J said at 654:

   By ‘an ordinary recess’, I take it, is meant a break or interruption of limited duration in the continuity of a normal working day, regularly allowed for meals or rest. The phrase seems to connote a suspension of activity which is to be resumed at the end of a stated period. Recesses, variously called lunch-hours, tea breaks, smokos, stand-downs etc, are normal features of employment in many industries. They are ordinary recesses. It seems to me a misuse of words to say that the appellant when he was swimming was temporarily absent from his place of employment during an ordinary recess.

   The parties’ contentions

3. Ms Demasi submitted that ‘ordinary’ relates to something that is usual in a particular employment, for a particular employee or something that can ordinarily be described as a recess, rather than a break that is taken on a regular basis. Rather than the antiquated terms of ‘lunch’, ‘morning tea’ or ‘smoko’, she submitted that given the flexible, varied nature of her work schedule, the break she took was an ‘ordinary recess’ because it was for the purpose of ‘clearing her head’ and breaking up her work day, and that it was akin to the types of breaks taken by workers under a standardised schedule, such as under an award.

4. Ms Demasi also submitted that she was not ‘off duty’ when she went for a run – the break she took was indistinguishable from going for a run at lunchtime, and it was irrelevant that it occurred at 9:30am. Rather than a ‘scheduled break’, an ‘ordinary recess’ is designed to cover any ‘normal’ break that she or any other employee may take, regardless of the time, provided it occurred within a continuous period of employment and had at least the tacit approval of her manager.

5. The Respondent submitted that the concept of ‘ordinary recess’ more aptly applies to employees working in a traditional, more regimented way – generally in fixed locations, where their working conditions including their breaks are clear and regular. The Respondent is of the view that whilst the Applicant enjoyed flexible working conditions, this does not necessarily mean that she is on an ‘ordinary recess’ during all periods when she is taking a break. The Respondent submitted that workers such as Ms Demasi, enjoying flexible working conditions like hers, need to be able to point to a clear indication that their employer permits them to take a regular break at a particular time or times for their breaks to be regarded as ‘ordinary recesses’.

   Consideration

6. Section 6(1)(b) of the SRC Act does not capture every circumstance that may arise in an employee’s work day. It is only when an employee is ‘temporarily absent’ from the place of work, and then only when the absence occurs ‘during an ordinary recess’ in the person’s employment, that the benefit of the section is attracted. Those critical restrictions confirm that the provision was not designed for the purpose, and nor does it have the effect, of covering every absence of an employee from the workplace.

7. A ‘recess’ in a person’s employment is, of course, a break in that employment – a ‘relatively brief interruption’, as its ‘normally understood acceptation’ was described in Drummond v Drummond.  Beyond that, it is difficult to mark out the precise territory covered by the expression.  An easy example is the lunch break.  But some of the other examples provided in Drummond’s case, such as the morning and afternoon tea break, while no doubt commonplace 60 years ago, have now disappeared in many workplaces, along with the ‘tea lady’ (it was never a man) whose arrival in those days heralded ‘pens down’.  And the old ‘smoko’, so easily identifiable and probably almost ubiquitous in an earlier era, is now something quite different, the expression often used only with heavy irony to niggle those poor souls still caught in tobacco’s vice-like grip.

8. I would have thought it is beyond argument that going for a run during one’s lunch break is doing something ‘during an ordinary recess’ in one’s employment. But taking a break for the specific purpose of going for a run, at any random time of the day, is in a different category. It is not a recess of the kind contemplated by s 6(1)(b) of the SRC Act, much less an ‘ordinary’ one. I must therefore reject the submission made on her behalf, that her run at 9:30 in the morning is ‘indistinguishable’ from a run at lunchtime, on the basis that the lunchtime run is undertaken ‘during an ordinary recess’ in the worker’s employment, while the run taken on an ad hoc basis during the work day is not.

9. In concluding as I do in relation to Ms Demasi’s circumstances, I do not ignore the evidence of her manager, Ms Arnott, as referred to in [17] above.  Relevantly, Ms Arnott also stated:

   As previously described, Maryanne often worked from home communicating regularly with myself and other staff.  She worked long hours well past 5pm each day, essentially working outside of normal hours regularly, in order to efficiently complete assignments.

   …

   Although I was concerned about her, and her injury, the fact that she was jogging during work hours was not a surprise or concern to me, as this was normal practice.

10. Ms Arnott’s statement that Ms Demasi was jogging ‘during work hours’, which I accept, does not establish that the break she took was an ‘ordinary recess’.  It merely acknowledges that, within the (undefined) period Ms Arnott describes as ‘work hours’, Ms Demasi went for a run, and that it was normal practice for her to do so.  That the break she took occurred within the traditional 9-to-5 timeframe, which I infer from Ms Arnott’s evidence, is not decisive.

11. I conclude that Ms Demasi’s injury was not sustained during an ordinary recess in her employment.

    CONCLUSION

12. The decision under review is therefore affirmed.

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost

......................[sgd]..................................................

Associate

Dated 26 August 2016

Date(s) of hearing	5 April 2016
Counsel for the Applicant	B McManamey
Solicitors for the Applicant	Turner Freeman Lawyers
Counsel for the Respondent	A Berger
Solicitors for the Respondent	Lehmann Snell Lawyers