Ng v Pharmacor
[2020] VMC 21
•7 October 2020
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKERS COMPENSATION DIVISION OF COURT
Case No. K123754419
| Meme NG | Plaintiff |
| v | |
| PHARMACOR LTD. | Defendant |
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MAGISTRATE: | M HOARE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 September 2020 |
DATE OF DECISION: | 7 October 2020 |
CASE MAY BE CITED AS: | Ng v Pharmacor |
MEDIUM NEUTRAL CITATION: | [2020] VMC 021 |
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CATCHWORDS – Workers Compensation – Rejection of claim for compensation for weekly payments and medical and like expenses – Employee injured in a paddle-boarding incident during a free-time day whilst on a compulsory work conference in Bali, Indonesia – Whether injury arose out of or in the course of employment – Interval or interlude within an overall episode of work – Whether the activity was the subject of the employer’s express or implied inducement or encouragement – Whether necessary correspondence between inducement or encouragement and the activity - Whether bearing in mind the objectives of the governing Act there would be an unacceptable extension of the course of employment to hold the employee was within the scope of employment– Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss. 39(1),10
APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr Plunkett | McCristal Injury Lawyers |
| For the Defendant | Mr Kumar | Minter Ellison |
INTRODUCTION AND OVERVIEW
On a summer’s day in 2019, Ms Meme Ng, the plaintiff in this proceeding, was paddle-boarding on a beach in Bali, Indonesia. She became caught in a rip and fell off the board striking her head (‘the injury’).
Ms Ng was in Bali attending a compulsory four-day work conference arranged by Pharmacor, her employer, the defendant in this proceeding. Ms Ng was employed by Pharmacor, a manufacturer of pharmaceuticals, as a full-time regional sales manager in Victoria.
A WorkCover claim was lodged for weekly payments and medical and like expenses in respect of the injury (‘the claim’). The claim was rejected by notice of the WorkCover Agent dated 12 April 2019 on the basis that Ms Ng had not sustained an injury arising out or in the course of her employment.
The proceeding, which related to Ms Ng’s rejected claim for compensation, is brought under the Workplace Injury Compensation and Rehabilitation Act 2013 (‘the Act’).
The factual circumstances were largely agreed in advance of the hearing. Notices to Admit Facts and Notices of Dispute were tendered into evidence.
The sole issue for determination was whether or not Ms Ng had sustained an injury in the course of or arising out of her employment with the defendant. The parties did not require the Court to make findings in relation to injury or capacity for employment.
There was no dispute that Ms Ng had sustained injury whilst engaged in an activity (paddle-boarding) during an interval or interlude (designated free-time on the fourth day of the conference) within an overall period or episode of work (the conference).
Ms Ng’s case, therefore, turned on whether or not, her engagement in the activity (paddle-boarding) was the subject of the employer’s express or implied inducement or encouragement and, further, whether or not, there was the necessary correspondence between the inducement or encouragement and the activity. Determination of the case was governed by the well-established principles of the High Court’s decisions in Hatzimanolis v ANI Corporation Ltd[1] and Comcare v PVYW[2].
[1] (1992) 173 CLR 473 (‘Hatzimanolis’)
[2] (2013) 250 CLR 246 (‘Comcare’)
Conducted over one day via WebEx, oral evidence was given by Ms Ng as well as two lay witnesses for the defendant, Mr Grant Dicks and Mr Richard Mlnarchik, employees of Pharmacor. All other material was tendered into evidence by consent.
In my opinion, for the reasons which follow, Ms Ng should have the relief which she seeks on the basis that she sustained an injury arising out of or in the course of employment with Pharmacor with a nominated date of injury of 25 January 2019.
AGREED FACTS AND MATTERS NOT IN DISPUTE
Ms Ng, who is aged 38, had been a full-time employee of the defendant since July of 2013. She lived and worked in Melbourne.
The conference, convened annually by Pharmacor, was held over four days between 22 and 25 January 2019. Attendance was compulsory. Employees, including Ms Ng, were paid their normal salary for the full conference period.
An itinerary document prepared by Pharmacor set out the conference program for the four days as follows:
22 January (Day 1): Afternoon arrivals followed by a welcome dinner
23 January (Day 2): Full-day of conference sessions followed by a dinner
24 January (Day 3): Half-day sight-seeing tour followed by a dinner
25 January (Day 4): Free time until 5:00 pm when employees met at hotel for departure to airport.Information about Day 4 was provided for employees in the itinerary document as follows:
Free time, ideally in groups for safety in numbers so we all make the flight home that evening! An allowance of up to $65AUD will be reimbursed for food/soft drink expenses Friday only. … Some suggestions (at your own expense): Seminyak, Tenah Lot Temple, cooking or yoga class, spa treatment.
**Please ensure you are back at the hotel by 5:00 for goodbyes and to depart to the airport.Employees were not to take work laptops or devices to the conference and instead were to use personal mobile phones. For communication purposes amongst employees at the conference, a human resources officer for Pharmacor had set up a group named ‘Pharmacor’ on WhatsApp, the social media messaging platform.
On Day 4, Ms Ng, in the company of four other Pharmacor employees, went paddle-boarding. The other employees included Mr Grant Dicks, business development manager, and Mr Richard Mlnarchik, national sales manager.
Mr Mlnarchik, who was based in Sydney, was Ms Ng’s direct manager. Mr Dicks, who was based in Queensland, had a similar role to that of Ms Ng within Pharmacor’s organisational structure. Mr Dicks also reported to Mr Mlnarchik.
Mr Dicks had decided to go paddle-boarding and proposed it to others. He invited the other employees to join him in the activity via WhatsApp. The message was time-stamped 3:09 pm (Australian Eastern standard time), however parties were in agreement the message was sent at 12:09 pm (Bali local time). It read:
‘Stand up paddle at 12.30 all interested meet on beach’.
Mr Mlnarchik replied on to this message on WhatsApp at 12:30 pm (Bali local time) as follows:
‘Hi Grant Meme, Mauro and myself just finished and we’ll meet you on the Beach’.
All employees who went paddle-boarding, including Ms Ng, paid for their own paddle-board rental.
Other employees on Day 4 participated in various recreational activities such as canoeing, shopping and massages.
THE EVIDENCE
Given the nature of the factual issues in dispute, it is convenient to consider the evidence in this matter in chronological sequence.
Between 20 and 30 employees attended the conference. Pharmacor’s workforce is geographically dispersed. Many employees would meet in person only once a year at the conference.
Ms Ng said the whole purpose of the conference was team-bonding and to spend time together. In cross-examination she said, we work alone and when it comes to the conference, we are encouraged to spend time together with our colleagues.
The formal sessions of the conference were on Day 2. All employees were expected to attend the three conference dinners. Breakfasts were an informal buffet arrangement. On Day 3, all employees were required to attend the pre-planned excursion tour. Ms Ng agreed that Day 4 was a free day for employees to engage in various recreational activities prior to the 5 o’clock meeting to catch the shuttle-bus to the airport.
In cross-examination, Ms Ng agreed the WhatsApp group was for logistical purposes such as to arrange meeting points and also for social purposes during the conference such as advising of changes of plans and sharing photographs.
At dinner on the evening of Day 3, Ms Ng recalled there being discussions about what activities people would do in the free-time the next day (Day 4). Ms Ng said Mr Dicks had suggested paddle-boarding at the dinner. Mr Dicks could not recall specifically raising paddle-boarding at the dinner, but he said he may have done so, as lots of times, people would have a discussion the evening before about the next day’s activities.
Ms Ng said in evidence that Mr Mlnarchik had come up to her about paddle-boarding. He had done so multiple times including at dinner the night before and at breakfast the next morning. Mr Mlnarchik had said that it would be fun and had used words such as ‘come, you should come’ and ‘make sure you come’.
Mr Dicks had decided to go paddle-boarding himself, but said he had no particular expectations about whether or not people would join him. His WhatsApp message about paddle-boarding was sent to all members of the WhatsApp group. Mr Dicks said he could not recall there being any encouragement given to anyone to join in.
As to whether Mr Dicks had any authority to arrange a recreational activity, Mr Dicks said that he had not. Day 4 was for free time and people were doing activities in their personal capacity. In cross-examination, Mr Dicks agreed that an overall purpose of the conference was team-building, however the final day was free-time. Mr Dicks conceded that the purpose of the free-time was to encourage people to spend time together in individual groups that splintered off according to people’s interests. He agreed that the suggested activities for Day 4 set out in the itinerary document were examples of the sorts of activities which people could choose to do. In re-examination, he said he would have been free to spend the time in his room by himself.
Mr Mlnarchik was asked whether he believed there were expectations as to how employees would spend time on Day 4. He said Day 4 was a free day and people could do what they wanted, whether outside the hotel, or within the hotel such as a massage or being by the pool. Mr Mlnarchik agreed that paddle-boarding, whilst not specifically listed on the itinerary document, was the type of activity contemplated for Day 4.
On the morning of Day 4, Ms Ng, Mr Mlnarchik and two other employees had massage treatments booked in together at around the same time. Afterwards, Ms Ng, Mr Mlnarchik and two other employees were served tea in a garden area. They were there together when Mr Dicks’ WhatsApp message about the paddle-boarding was received. Mr Mlnarchik read the message aloud and asked who wanted to come. He then sent the response to Mr Dicks’ message on behalf of the group agreeing to meet on the beach.
Mr Mlnarchik had wanted to go paddle-boarding but said he had not had expectations of other employees going paddle-boarding. He could not recall whether paddle-boarding was discussed at dinner the night before. In cross-examination, he conceded he may have asked Ms Ng about paddle-boarding at dinner, but he could not recall specifically. In re-examination, Mr Mlnarchik said he thought paddle-boarding may have been discussed at breakfast.
When asked whether Mr Mlnarchik had authority to arrange activities for other employees on Day 4, he said he had not. He also said Mr Dicks had no authority to arrange activities for other employees. Mr Dicks had arranged the paddle-boarding on his own initiative. It was free-time subject to a restriction against using motor-bikes for safety reasons. Mr Mlnarchik did not believe he had exerted any influence over Ms Ng to go paddle-boarding. He did not recall using words such as ‘you should come’ or ‘make sure you come’. Mr Mlnarchik said he would not try to push anybody to do anything.
About seven employees had met on the beach. Mr Dicks agreed that about 20 minutes elapsed between his WhatsApp message of 12:09 pm and people meeting on the beach. Five employees went paddle-boarding including Ms Ng, Mr Mlnarchik and Mr Dicks. Another went canoeing and one employee (the CEO) rented a jet-ski.
As for the injury itself, Ms Ng had become caught in a rip and came off the paddle-board. She had struck her the back of her head on the board and lost consciousness very briefly.
Under quite rigorous cross-examination, Ms Ng agreed it was her own decision to participate in paddle-boarding. She conceded she went paddle-boarding because she wanted to go. She agreed she could have gone shopping or stayed in her room if she had wished.
Ms Ng believed an intention was formed amongst a group of employees at the dinner the evening before to go paddle-boarding the next day. However, she agreed nothing was arranged in concrete until Mr Dicks sent the WhatsApp message with the meeting time on the beach.
Ms Ng disagreed that the paddle-boarding was a group of friends participating in a social activity arranged by Mr Dicks. She said Mr Mlnarchik had kind of taken over and was going around to everyone about the paddle-boarding. In cross-examination, when asked whether there was an expectation on the part of Mr Mlnarchik that she attend the paddle-boarding, Ms Ng said that Mr Mlnarchik didn’t 100% expect her to go but that he really wanted her to be there.
Regarding the nature of the relationship between Ms Ng and Mr Mlnarchik, Ms Ng agreed they were friends in a social sense, as well as work colleagues, who would catch up for dinner away from work, for example when Mr Mlnarchik was in Melbourne. Mr Mlnarchik, when asked to what extent he and Ms Ng were friends outside work, said they knew each other and that if he was in Melbourne for business they would catch up over lunch or dinner, but would mostly discuss work.
ANALYSIS
Burden of Proof
The legal and evidentiary burden of proof to be discharged by Ms Ng was that her injury on 25 January 2019 arose out of out of or in the course of her employment with the defendant. That was the agreed view of both Counsel.
The Law
The Act provides that if there is caused to a worker an injury arising out of or in the course of any employment the worker is entitled to compensation in accordance with the Act: s39(1).
In relation to the phrase ‘arising out of or in the course of any employment’, the relevant principles of law governing this case were those established by the authorities of Hatzimanolis-v-ANI Corporation Ltd[3] and Comcare-v-PVYW[4][i] as well as the NSW Court of Appeal decision of Pioneer Studios Pty Ltd-v-Hills.[5]
[3] Ibid
[4] Ibid
[5] [2015] NSWCA 222 (‘Pioneer Studios’)
Firstly, as the joint reasons in Hatzimanolis stated:
Where ... an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work.[6]
[6]Hatzimanolis at [15]
Secondly, since Hatzimanolis, it is well-settled law that ‘an interval or interlude within an overall period or episode of work occurs within the course of employment, if expressly or impliedly, the employer has induced or encouraged the employee to spend the interval or interlude in a particular place or in a particular way’.[7]
[7]Hatzimanolis at [16]
As to the operation of the Hatzimanolis principle, the plurality of the High Court in Comcare held as follows:
The starting point in applying what was said in Hatzimanolis, in order determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been engaged in an activity or present at a place when the injury occurred. The essential enquiry is then, how was the injury brought about? … When an activity was engaged in at the time of the injury, the question is: did the employer induce or encourage the employee to engage in that activity? … If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment. [8]
[8]Comcare at [38]
Thirdly, the central question of whether the employer did induce or encourage the employee to engage in that activity, ‘depends on an objective characterisation of the employer’s requirements and expectations... It is not sufficient that this particular employee held a particular view which on the evidence was not shared by the director of the company…[9]
[9]Pioneer Studios at [36]
Fourthly, as the plurality of the High Court made clear in Comcare, there is a requirement that there be a link or ‘the necessary correspondence’ between the inducement or encouragement and the activity before the Hatzimanolis principle will apply.[10]
[10]Comcare [46] – [47]
Finally, there is what the NSW Court of Appeal called an ‘important limitation’ on the scope of the Hatzimanolis principle.[11] As the joint reasons in Hatzimanolis stated, it would be an unacceptable extension of the course of employment to hold that an employee was within the scope of employment whenever the employer had authorised, encouraged or permitted the employee to spend the time during an interval … in a particular way.[12] The words of the principle articulated in Hatzimanolis are not to be applied literally to facts, as the plurality of the High Court observed in Comcare, without further consideration of what is conveyed by the reasoning of the principle and without bearing in mind the terms of the governing Act and the limit it seeks to place upon an employer’s liability for compensation.[13]
[11]Pioneer Studios at [16]
[12]Hatzimanolis at [38], cited with approval in Pioneer Studios at [35]
[13]Comcare at [15]
Submissions
There was no dispute, regarding the application of the legal principles, as to the following:
a.Ms Ng was in the course of her employment in attending the work conference in Bali and that the work conference constituted an overall period or episode of work.
b.Ms Ng sustained her injury when she was not engaged in actual work. Accordingly, the injury occurred during an interval or interlude within the overall period or episode of work. The interval or interlude began when the Day 3 dinner ended and continued until 5:00 pm on Day 4 when employees were to congregate for departure to the airport.
c.In order to succeed in her claim, the plaintiff had to establish, on the balance of probabilities, that her engagement in the activity of paddle-boarding was the subject of the employer’s express or implied inducement or encouragement and, further, that there was the necessary correspondence between the inducement or encouragement and the activity.
The plaintiff’s submissions
There were compelling similarities, it was submitted, between the facts of this case and those of Hatzimanolis as set out in the joint reasons[14].
[14]Hatzimanolis at [2] – [5]
Submissions for both parties referred to the facts of Hatzimanolis. Therefore, it is necessary to set them out briefly. Employees were flown by the employer to a remote location for a three-month period of work. Accommodation, including all meals, was supplied by the employer. Rostered work occurred on six days of the week with a seventh day (Sundays) designated as free time. One Sunday, Mr Pope (the supervisor and ANI’s spokesperson for the employees at the location), had said according to the evidence, ‘I’m organising a trip to Wittenoom this weekend for anybody who cares to come along’. All but one employee had decided to go. It was not a compulsory activity; employees were not directed to go and were free to stay at the camp. Mr Hatzimanolis was injured during the trip when one of the vehicles rolled.
In this case, as in Hatzimanolis, the activity (paddle-boarding) was not a required activity nor was it an activity that Ms Ng was directed to do. The plaintiff went paddle-boarding of her own free-will.[15] She could have chosen a different activity or remained in her room.
[15] Defendant’s Notices to Admit at [7] and [10]
However, the weight of the evidence supported a finding that the activity had been the subject of inducement or encouragement on the part by the employer. The inducement and encouragement, which was both express and implied, took three main forms:
a.The four-day conference had an over-arching purpose of team-building and strengthening of ties through employees spending time together;
b.The specific inclusion of information in the itinerary document that employees on Day 4 should remain ‘ideally in groups’ with suggested examples of recreational activities;
c.Mr Mlnarchik’s conduct in urging or persuading Ms Ng to participate in paddle-boarding and his role as her direct manager
Counsel referred the following evidence in support of the plaintiff as follows:
- A program in which 20-30 employees were flown to a remote location for four days, only one day of which was formal conference sessions, gave rise to a clear inference that the trip was intended by Pharmacor to strengthen relationships and team-building amongst colleagues across the four days.
- If Pharmacor’s purpose for the conference was for an exchange of information and ideas in a formal sense on only one day out of four, the conference would have been held either in a city location or online. In contrast, the convening of the conference in a place like Bali where leisure activities such as paddle-boarding would be available combined with allocating a full day to such activities was clearly an important consideration for the employer in arranging the program in the way that it had.
- That the overall purpose of the conference was for employees to spend time together was a matter conceded by Mr Dicks.
- Day 4, whilst a day of free time in the sense of not being pre-planned, was nevertheless time during which employees were encouraged to be in groups according to their interests as evidenced by the itinerary document.
- Ms Ng’s evidence that Mr Mlnarchik had actively encouraged her and others to go paddle-boarding with words such as ‘you should come’ and ‘make sure you come’ multiple times was credible and should be accepted as likely.
- Mr Mlnarchik was Ms Ng’s direct supervisor and, according to the itinerary document, an organiser of the conference. It would be artificial to find he was not acting for and on behalf of Pharmacor.
- Mr Dicks’ WhatsApp message that was sent to the ‘Pharmacor’ group set up by the defendant was precisely the kind of informal arrangement for Day 4 that was anticipated by the employer.
Finally, as for establishing the necessary correspondence between the inducement or encouragement and Ms Ng’s decision to go paddle-boarding, that was made out based on the entirety of Ms Ng’s evidence regarding her direct supervisor’s conversations with her and her understanding of the purpose of the conference being about spending time together.
In submissions, also, incorrectly in my opinion for reasons I will outline, Counsel for the plaintiff had contended that it was a relevant matter to the Court’s determination that Ms Ng was, on Day 4, as Counsel put it, on the clock and was being paid her salary for the entire conference.
The defendant’s submissions
The Court was urged to bear in mind the important limitation on the scope of the Hatzimanolis principle.[16] To find in the plaintiff’s favour on the facts of this case would be an unacceptable extension of the course of employment when bearing in mind the terms of the governing Act (the WIRC Act) and the limit it seeks to place upon an employer’s liability for compensation.[17]
[16]Pioneer Studios at [16]
[17]Comcare at [15]
Moreover, while there were similarities, this case was sufficiently different to Hatzimanolis for it to be distinguished on the facts. In particular, the role played by Mr Pope in Hatzimanolis, including features of the role (in organising and providing vehicles and food for the 800 kilometre road trip), was key to the findings of the joint reasons that the injured worker was in the course of his employment. Those features of Mr Pope’s role gave rise to the inevitable conclusion that he was authorised by and on behalf of the employer to arrange the activity.
Here, in contrast, there was no such person with authority nor any such features. It was plain on the evidence that neither Mr Dicks nor Mr Mlnarchik had any kind of authority to arrange the paddle-boarding as follows:
· Mr Dicks had proposed paddle-boarding, however on his and Mr Mlnarchik’s evidence, Mr Dicks had no authority to arrange the activity or in relation to Ms Ng. It was notable that Mr Dicks and Ms Ng had more or less equivalent roles within the organisational structure of Pharmacor.
· Mr Mlnarchik also had, on his evidence, no authority to mandate what activities employees engaged in on Day 4.
· The paddle-board rental was not paid for by Mr Dicks or Mr Mlnarchik. Employees paid for their own paddle-board rental.
· The fact of Mr Dicks’ message being sent via the WhatsApp ‘Pharmacor’ group was an irrelevant consideration in terms of drawing an inference of there being any kind of authority on the part of Mr Dicks. The WhatsApp group was set up for various purposes including of a social nature.
Additionally, aside from the roles of Mr Mlnarchik and Mr Dicks being quite differently characterised to that of Mr Pope in Hatzimanolis, the evidence in this case simply did not support the plaintiff’s case that the activity of paddle-boarding was, expressly or impliedly, the subject of inducement or encouragement on the part of the employer. The defendant relied upon the following evidence:
· The free time on Day 4 was quite different to the informal activity on Day 3 which was pre-planned and compulsory, as the plaintiff’s own evidence acknowledged.
· The paddle-boarding was planned only 20 minutes before the employees met on the beach at 12:30 and before that, it was a matter of informal discussion only on the part of fellow employees.
· When Mr Dicks’ message was received, Mr Mlnarchik had said to the others that he was going and had asked whether they (including Ms Ng) wanted to go.
· Mr Dicks had simply decided to do the activity himself and the others including Ms Ng had also decided to go paddle-boarding in their personal capacity. Mr Dicks’ evidence that employees made the decision to participate in paddle-boarding in their personal capacity was unchallenged.
In the alternative, Counsel for the defendant, submitted:
· If there was found to be an overall purpose of team-building in respect of the conference, it was nevertheless the case that Day 4 was a free time day with no requirement or expectation of employees as to any particular activity. Mr Dicks had agreed an overall purpose of the conference was team-building, but maintained the final day was free time for people to engage in recreation in their personal capacity.
· If there was found to be any encouragement of the plaintiff by Mr Mlnarchik, then he didn’t have the authority of Pharmacor to do so. In any event, if there had been such encouragement by Mr Mlnarchik, it was wholly explicable on the ground that Ms Ng and Mr Mlnarchik were employees who were also friends socially.
· Finally, if the court were to find there had been, expressly or impliedly, encouragement or inducement of the activity of paddle-boarding, the evidence did not support there being the necessary correspondence between the encouragement and the activity. Ms Ng had gone paddle-boarding because she wanted to go and because it would be fun.
· As a matter of law, Ms Ng’s subjective belief about the activity was not sufficient. Instead the question depended on an objective characterisation of the employer’s requirements and expectations which on the evidence of Mr Dicks and Mlnarchik was for employees to have free time on Day 4 to engage in activities, as Mr Dicks put, in their personal capacity.
The submission of Counsel for the plaintiff, that Ms Ng being ‘on the clock’ and paid her salary for the four days were relevant considerations in the case, was plainly incorrect. It was never disputed that the entire four days of the conference constituted an episode or period of work and that the paddle-boarding occurred during an interlude. Therefore, those matters had no bearing on the case one way or another.
Findings
Whether Ms Ng’s participation in the activity of paddle-boarding on 25 January 2019 was, expressly or impliedly, induced or encouraged by the employer
Ms Ng was cross-examined rigorously about the details and arrangements of the conference program. During this cross-examination, she gave consistent and credible answers. Having the benefit of observing the plaintiff whilst she was giving evidence, I formed the view that she was a witness of truth. She gave her evidence openly and without embellishment. She made concessions which were adverse to her interests where necessary, such as agreeing that she wanted to go paddle-boarding or that she could have gone shopping or stayed in her room.
The fact that Ms Ng conceded, in cross-examination, that she wanted to go paddle-boarding does not lead, in my opinion, to a conclusion that the activity was not subject to the employer’s encouragement or inducement. The plaintiff’s case was never put on the basis that she was compelled or directed. It does not follow that, because Ms Ng may have wanted to paddle-boarding and did so of her own free will, the activity was not the subject of inducement of encouragement. Certainly, however, the plaintiff did have to establish ‘necessary correspondence’ between the encouragement and the activity, a matter to which I will return.
Whilst I accept Ms Ng’s evidence as credible and reliable, my determination as to whether the defendant did induce or encourage Ms Ng in the activity depends on the whole of the evidence and on an objective characterisation of the employer’s requirements and expectations.
It is convenient to consider this question based on how the plaintiff put the case in submissions which was that three aspects of the defendant’s conduct could be objectively characterised as inducing or encouraging the activity. Briefly, these were:
a.The conference’s overall purpose of team-building;
b.The itinerary document informing employees that on Day 4 they should remain ‘ideally in groups’ with suggested examples of recreational activities;
c.Mr Mlnarchik’s urging or persuading of Ms Ng to participate in paddle-boarding and his role as her direct manager.
Objectively characterised, in weighing the whole of the evidence, I find that the entire conference arrangements were strongly under-pinned by a purpose of building ties and relationships and a sense of team amongst Pharmacor’s geographically-dispersed employees. I accept the submissions of the plaintiff’s counsel in this regard that whole nature of the conference was about employees being together engaging in a mix of structured and unstructured activities across the four days.
I find that the unstructured free time on Day 4 was an integral part of the overall four-day itinerary. Matters I have considered include the following:
· Four days is a relatively short amount of time for an international conference and, in my opinion, the defendant’s expectation was that, during the free time on Day 4, employees would, as Mr Dicks said, splinter off into groups subject to their interests.
· Having found that the conference program was designed to strengthen relationships and team-building amongst colleagues, I reject Mr Dicks’ evidence that on Day 4 people were doing activities in a personal capacity.
· I prefer as more likely, given the overall nature of the conference, the evidence of Ms Ng that employees worked alone generally and that, when it came to the annual conference, they were encouraged to spend the time together with colleagues.
· On the morning of Day 4, prior to the paddle-boarding, Ms Ng and other employees were together as a group having a massage and so, in the afternoon, they proceeded to another sort of activity.
I further find that this purpose that under-pinned the conference impliedly encouraged or induced the employees to engage recreational activities in small groups on Day 4. Accordingly, Ms Ng and others had a massage together in the morning and went paddle-boarding with others in the afternoon. The information in the itinerary document in relation to Day 4 in the overall context of the conference was supportive of such a finding as was the exchange of messages to make the arrangement via the ‘Pharmacor’ WhatsApp group. Mr Mlnarchik agreed that paddle-boarding, whilst not specifically listed on the itinerary document, was the type of recreational activity contemplated for Day 4.
I find that that Mr Mlnarchik in his words and conduct had encouraged or induced Ms Ng to go paddle-boarding. I accept as correct the submission of counsel for the plaintiff that would be artificial to contend Mr Mlnarchik was not acting for and on behalf of Pharmacor. I found Ms Ng’s evidence persuasive that Mr Mlnarchik, had ‘kind of taken over’ and was ‘going around to everyone’ about the paddle-boarding. I also found compelling her evidence that Mr Mlnarchik ‘didn’t 100% expect her to go but that he really wanted her to be there’. In this context, I found it a relevant consideration that Mr Mlnarchik was Ms Ng’s direct manager.
Mr Mlnarchik’s evidence did not directly contradict that of Ms Ng’s. He simply did not recall using those particular words and that he had not exerted pressure. Mr Mlnarchik conceded he may have raised paddle-boarding at dinner and it may have been discussed at breakfast.
I reject the contention urged on the Court by the defendant that there was a social friendship between Mr Mlnarchik and Ms Ng. I do so on the basis of Mr Mlnarchik’s evidence that they only met in a business context and mainly talked about work.
Whilst I accept Counsel for the defendant’s submission that Mr Mlnarchik’s role did not have the same features as that of Mr Pope in Hatzimanolis, I find nevertheless that his conduct, objectively characterised, did, as a matter of fact, encourage or induce Ms Ng to go paddle-boarding. I so find on the basis that he had raised the activity multiple times and I accept Ms Ng’s evidence that he used words such as ‘you should come’ or ‘make sure you come’. Certainly, I do not find there to have been in any way anything at all untoward about Mr Mlnarchik’s conduct. I find that he did want employees and members of his team to do an activity together in the afternoon as they had in the morning.
In conclusion, I find that the encouragement or inducement was both express and implied and arose out of the combined circumstances of the nature and purpose of the overall conference as well as Mr Mlnarchik’s efforts to persuade or encourage Ms Ng to go paddle-boarding.
On the whole of the evidence, and in particular Ms Ng’s evidence, I find on the balance of probabilities that there was the necessary correspondence between the encouragement or inducement and the activity. I find that Ms Ng was influenced in a desire to go paddle-boarding by her consciousness of Pharmacor’s expectations of employees spending time together and by the persuasion of her direct manager.
For the sake of completeness, I agree with Counsel for the defendant that Ms Ng being ‘on the clock’ and being were irrelevant to determining this case as an interlude case and those matters had had no bearing on my decision.
Lastly, whilst each case is decided on its own facts, I have arrived at my decision bearing in mind, as I am required to, the ‘important limitation’ on the scope of the Hatzimanolis principle.[18] I have considered the Objectives of WIRC Act set out in s.10, including on the one hand ensuring appropriate compensation is paid to injured workers in the most socially and economically appropriate manner and on the other hand the limits sought to be placed upon an employer’s liability for compensation. In my view, the facts of this case do not represent an unacceptable extension of the course of employment. Rather, for the foregoing reasons and taking into account my findings in relation to the conference, Ms Ng is entitled to the relief she seeks as she was engaged in an activity that was squarely within Pharmacor’s expectations of its employees on Day 4 of the conference.
[18]Pioneer Studios at [16]
CONCLUSION
In my opinion, the plaintiff has discharged the legal and evidentiary burden of proof. On the balance of probabilities, I am satisfied that Ms Ng sustained injury whilst doing an activity that was, expressly or impliedly, the subject of the employer’s inducement or encouragement and that there was ‘the necessary correspondence’ between the inducement or encouragement and the activity.
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