Re Connor and Australian Postal Corporation

[2009] AATA 973

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 973

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2704

GENERAL ADMINISTRATIVE   DIVISION		)
Re		DEBRA ANN CONNOR

Applicant

And AUSTRALIAN POSTAL CORPORATION  

Respondent

DECISION

Tribunal Mr G McDonald, Deputy President
Mr F O'Loughlin, Senior Member

Date18 December 2009

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and in substitution decides that the Respondent is liable to compensate the Applicant for injury sustained in the course of her employment. 

........(sgd G McDonald)......................

Deputy President

COMPENSATION – Employee injured during lunch break - Whether place of injury was place of work – decision set aside.

Safety, Rehabilitation and Compensation Act 1988 s 6

Barnard and Australian Postal Corporation [2008] AATA 507

REASONS FOR DECISION

18 December 2009 Mr G McDonald, Deputy President
Mr F O'Loughlin, Senior Member 

1.      Ms Connor seeks review of a decision to deny her benefits under the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of an injury that occurred in the car park area at the rear of a building, the ground floor of which was the Bendigo Post Office/Australia Post shop (the car park, the Post Office Building and the Post Office respectively) at which she was, and is, employed by the Respondent Australia Post.  

2.      The issue in dispute is the Respondent’s liability to pay compensation under s 14 of the Act.  If there is a liability, the amount of the entitlement is not in dispute.

3.The dispute has three alternative bases:

(a)whether the injury occurred in the course of Mrs Connor’s employment without reference to s 6(1)(b) of the Act;

(b)whether s 6(1)(b) applies to deem Mrs Connor to have suffered a compensable injury; and

(c)whether s 6(1)(c) applies to deem Mrs Connor to have suffered a compensable injury.

4. The Respondent conceded, correctly, that if the place where Mrs Connor fell was a place of work for the purposes of s 6(1)(b), the Respondent has a liability to pay compensation.

5.Section 6(1)(b) provides as follows:

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, including during an ordinary recess, for the purposes of that employment; or....

6. For the reasons which follow, the Tribunal concludes that s 6(1)(b) applies and, because that section applies, it is unnecessary to consider Mrs Connor’s position without reference to s 6(1)(b), or under s 6(1)(c).

The facts

7.The facts leading to Mrs Connor’s claim are as follows:

(a)at the time of the injury Mrs Connor was an employee of Australia Post whose duties were required to be performed at the Post Office;  

(b)the Post Office property is bounded on three sides:

(i)on the north-western side by Hargreaves Street, the street from which customers enter the Post Office;

(ii)on the south-western side by Williamson Street; the street from which Post Office box users, and tenants and visitors to the upper floors of the building entered the Post Office Building, and from which staff and motor vehicles entered the Car Park;

(iii)on the south-eastern side by Lyttleton Terrace. 

(c)the car park is bounded by the rear wall of the Post Office Building, Williamson Street, Lyttleton Terrace and the neighbouring property.  The car park area  is fenced and fitted with  security gates on the Williamson Street and Lyttleton Terrace boundaries;

(d)the Post Office Building and the car park were, and are, owned by the Greater City of Bendigo. The ground floor of that building and either some or all of the car park are the subject of a lease to Australia Post.  Particular aspects of the property and the lease are as follows:

(i)the conferral of the leasehold interest to Australia Post was expressed in the following terms:

…

the Lessor LEASES to the Lessee the premises described in Item 1 of the Third Schedule (“the Premises”) which form part of the building (“the Building”) ... TOGETHER WITH the non-exclusive right of the Lessee ... to use in common with other persons entitled to use the same so much of the Common Parts of the Building as may be necessary and made available by the Lessor for the proper use and enjoyment of the Premises …

(ii)the term Building was defined as

“Building” means the Building described above together with any modifications, ... and together with ... and including ... parking areas ... and Common Parts and conveniences on the Land.

(iii)the term Common Parts was defined as

“Common Parts” means those parts of the Building and/or the Land provided by the Lessor from time to time for common use by the Lessee and the Lessor and/or other occupants of the Land and/or the Building and including ... the entrances, ...and access ways to other parts of the Land and/or the Building not demised or intended to be demised to the Lessee or other occupants of the Land and/or the Building.

(iv)the lessee was obliged to notify the lessor of any defects and any circumstances likely to cause any danger, risk or hazard to the premises or to the building or any person in the premises or the building (Clause 4.16);

(v)The lessor covenanted to allow the lessee enjoyment of the premises without interruption or disturbance from the lessor (Clause 7.1);

(vi)Item 1 of the Third Schedule described the premises in the following terms:

Part ground floor, 261 Hargreaves Street, Bendigo (269 square metres retail space and 367 square metres business centre accommodation – subject to survey) and 8 car parking bays at rear of building with facility of drive through access as delineated on the plan annexed.

(vii)Item 6 of the Third Schedule struck a rental rate, with differential rates per square metre, for the retail and business centre parts of the premises and no rate for the car park area;

(viii)the sketch plan of the car park included in the lease document indicated eight car parking bays in particular positions;

(ix)the Post Office Building had an external stairway which had the appearance of an external fire escape for the upper floors of the building.  While the stairway began (or ended) in the car park area, and while the evidence was that the tenants used the stairs at the rear of the building for ingress and egress, it was not clear what the frequency of that use was or whether or not there was a formal agreement as to the utilisation of the facility.  There is no evidence to suggest whether there was or was not a formal arrangement and if it had any effect on the terms of the lease;

(x)the ground floor of the Post Office Building had:

A.a street entrance to the Post Office;

B.entrances to the PO Box room from the car park area and from the street;

C.a security key-coded  rear entrance to the building from the car park area, which was for use by Australia Post employees; and

D.a street entrance to facilities allowing access to and egress from the upper floors of the building;

(xi)the Williamson Street gate to the car park area was fitted on the inside of the wall and moved along a track that protruded from the ground  slightly inside the car park area (the car park gate track); and

(xii)the outer wall of the car park area had a sign indicating that the car park was for Australia Post customers and the parking bays had a similar sign;

(e)at the time of her injury, Mrs Connor worked a rotating shift roster with the other part-time employees of Australia Post.  Her normal hours were 40 hours, spread over a fortnight, depending on the applicable roster.  Some days she worked only 5 hours and on other days up to 7 hours.  On the days she worked, her meal break was usually either 11.00 am to 12 noon or from 2.00 pm to 3.00 pm;

(f)as a Postal Services Officer, Mrs Connor worked behind a counter, serving customers, accepting mail, assessing postage, selling stamps and stationery, receiving payment of bills and the like;

(g)Australia Post staff usually entered the Post Office Building via the key- coded secure entrance at the rear of the Post Office;

(h)the Post Office manager and the assistant manager had keys to the gates.  There were three more sets of keys to the gates hanging in the manager’s office.  Australia Post staff unlocked and opened and shut and locked the gates each day.  Usually the Post Office manager or the assistant manager locked the gates at night or they delegated someone else to lock the gates at night, depending on who was last to leave work.  Mrs Connor opened or closed the gates from time to time, as part of her duties;

(i)employees coming into or leaving the Post Office would use the bigger vehicular gate entrance that Mrs Connor used on the day she sustained her injury;

(j)on the day of her injury, 19 March 2008:

(i)Mrs Connor commenced work at about 9.00 am and worked through to her rostered lunch break at 11.00 am that morning;

(ii)during her lunch break, Mrs Connor walked through the back doors of the Post Office building, through the car park and the large vehicular gate and across Williamson Street to the shops to buy her lunch.  While she was out she also bought some chocolates for her family;

(iii)Mrs Connor returned to work through the car park via the Williamson Street vehicular gate.  As she crossed the threshold of the car park, Mrs Connor tripped on the car park gate track, stumbled one or two paces forward and fell to the ground, which was the cause of her injury.  Neither the car park gate track nor the place where she fell was a marked parking bay within the car park area; and

(k)Photographs taken some time after Mrs Connor’s fall indicated that the marked car park bays in the car park area were not in the positions suggested by the car park sketch that formed part of the lease.

The parties’ contentions

8.      Mrs Connor asserts that the accident occurred at her place of work, being her employer’s business premises.

9.      The Respondent says that the accident did not occur at Mrs Connor’s place of work, asserting that only the marked car parking bays, form part of the leased premises. However, it is not clear whether the Respondent is referring to  the markings in the car park sketch forming part of the lease document or the parking bays marked on the ground.  The Respondent asserts that that part of the car park area at the rear of the building that was not marked as car parking bays was not part of the leased premises and was common property.

The Tribunal’s Consideration

10.     In circumstances where Australia Post, as the lessee of premises which are defined as set out above, has  control over who the security gate permits access to and egress from the car park area, the preferred conclusion is that either:

(a)the whole car park area forms part of the leased premises; or

(b)the whole car park area is sufficiently the place of work of the employees’ of Australia Post whose duties require them to work and attend at that site.

11. On either footing, the terms of s 6(1)(b) of the Act are attracted.

12.     The facts and circumstances of Australia Posts’ occupation of the Post Office Building, including the car park area, are sufficiently different to those in the case of Barnard and Australian Postal Corporation [2008] AATA 507 where the injury occurred on what was common property in a facility where there was not exclusive access such that that decision ought not be taken as a guide to the correct outcome for Mrs Connor.

13.     In Barnard the Tribunal observed:

55       I consider it neither possible nor appropriate for me to seek to determine a definition of universal application for the phrase under consideration as it is not capable of universal definition and each case must be determined on its own circumstances.

...

60       I consider the most beneficial construction of the words “place of work” available to the applicant on the facts of this matter does not extend beyond the building in which the applicant worked. This is particularly so given that there is no evidence of any work being performed by any employee of the respondent, let alone the applicant, occurring, either expressly or by necessary implication, on the land but outside the building. A different conclusion may have been reached if the facts in this regard were otherwise.

61       Accordingly, notwithstanding the fact that the respondent leased the whole of the office areas within the building and was either the principal or sole tenant, I find that the applicant was no longer at her “place of work” once she had left the building in which she worked as:

ono part of the “Leased Premises” extended beyond the interior of the building;

oareas external to the building formed part of the “Common Area” in respect of which the applicant’s and respondent’s were only entitled, by licence, to cross for the purpose of access to and egress from the leased premises;

othere was no evidence that any work was undertaken by any employee of the respondent (let alone the applicant) on the land on which the building was constructed other than within the building;

62       I note on the evidence that, after she exited the building, the applicant walked some 14.5 metres before she fell and sustained her injury. Whether the distance was over 14.5 metres or only a few centimetres outside the building is not to my mind of any moment in determining whether or not the injury had occurred at the applicant’s “place of work”. The distance travelled and where the injury was sustained (ie steps to the footpath) do, however, seem to reinforce the proposition that the area where the applicant sustained her injury was not an area which the applicant or, on the evidence, any other person employed by the respondent worked, either expressly or by necessary implication. I find that neither the fact that, under the lease, the respondent reimbursed the lessor in respect of all outgoings in relation to the common areas (including the steps) is, if not entirely relevant, of little relevance in determining whether or not the place where the applicant fell comprised part of her “place of work” within the meaning of the Act.

14.     In the present matter, there is evidence of an intention to lease at least part, if not all, of the car park area to Australia Post. There is evidence of Australia Post employees traversing the car park area as part of their duties. There is evidence that Mrs Connor in fact traversed the car park area as part of her duties. Moreover, there is evidence of exclusivity in the use of the car park.

15.     Even if Australia Post did not have control of all of the car park it is clear that Mrs Connor tripped on a feature of the car park (the car park gate track which formed part of the operation of the car park gate) which was locked and unlocked by Australia Post employees and over which Australia Post did have control.   Aust Post had control over the carp park area in being able to decide when to lock it and when to open it.  Given the parking was restricted to customers of Aust post (regardless of whether Aust post enforced this aspect) and regardless of ingress and egress of others the area was part of the employee's place of work.  A place does not need to be exclusively part of the employee's place of work for these purposes.

16.     Australia Post did not have control over structural aspects of the premises, a factor relied on by the Respondent in asserting that the car park was not Mrs Connor’s place of work.  Many tenants of land and buildings have limited, if any, control over structural aspects of their leased premises but that would not necessarily preclude those premises from being places of work within the meaning of the Act.  Unsurprisingly, in the present circumstances, as a tenant of the Post Office Building and some or all of the car park, Australia Post had obligations to notify the lessor of defects and hazards (including structural defects and hazards) associated with its tenancy.  It is not correct to say that Australia Post had no part to play in relation to structural maintenance and repairs.

Conclusion

17. In the foregoing circumstances, the Tribunal finds that s 6(1)(b) applies and Australia Post is liable to compensate Mrs Connor’s for her injury. It is therefore unnecessary to consider whether without the assistance of s 6(1)(b) of the Act, or by operation of s 6(1)(c) of the Act, Mrs Connor is entitled to compensation.

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G McDonald, Deputy President
Mr F O’Loughlin, Senior Member

Signed: .........(sgd D. De Andrade).................................................

Personal Assistant

Date of Hearing  1 October 2009
Date of Decision  18 December 2009
Counsel for the Applicant            Mr M Carey
Solicitor for the Applicant             Arnold Dallas McPherson
Counsel for the Respondent        Mr A Moulds
Solicitor for the Respondent        Frenkel Partners