Rye and Comcare (Compensation)
[2018] AATA 4658
•20 December 2018
Rye and Comcare (Compensation) [2018] AATA 4658 (20 December 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5999
Re:Katherine Rye
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:20 December 2018
Place:Sydney
1. The reviewable decision, being the decision of Comcare made 14 September 2017 denying compensation for the applicant’s injury, is set aside.
2. In substitution, it is decided that the Respondent is liable to pay compensation for the applicant’s injury pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988.
......................[sgd]..................................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
COMPENSATION – whether injury occurred in the course of employment – whether the activity was associated with the employee’s employment – whether applicant was engaged in fulfilling duties for employer when injury was sustained – whether employer actively encouraged the employee to participate in the activity – netball game – injury to right knee – NAIDOC week event – ceremonial leave – decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Adrian John Mather and Irene Patricia Mitchell [1995] FCA 1216
Comcare v PVYW (2013) 250 CLR 246
Commonwealth v Oliver (1962) 107 CLR 353
Commonwealth of Australia v Lyon (1979) 24 ALR 300
Gregory v Comcare Australia (1997) 72 FCR 196
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Hill and Comcare [2018] AATA 670
Kavanagh v The Commonwealth (1960) 103 CLR 547
Kelly and Australian Telecommunications Corporation [1991] AATA 720
Mozny and Comcare [2018] AATA 1966
O’Loughlin v Linfox Australia Ltd and Anor (2015) FCA 1000; (2015) 235 FCR 164
Prieto and Comcare [2010] AATA 546
Roncevich v Repatriation Commission (2005) 222 CLR 115
Saunders and Comcare [2011] AATA 238
Wheele and Comcare [2010] AATA 200Whittingham v Commissioner for Railways (WA) (1931) 46 CLR 22
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
20 December 2018
INTRODUCTION
In her application dated 10 October 2017, the applicant (“Rye”) seeks review of a decision of the respondent made 14 September 2017 which affirmed a primary determination dated 28 July 2017 which found that the applicant did not suffer an injury arising out of her employment or in the course of her employment.
FACTS
The applicant was born on 16 July 1980, and is of Aboriginal descent. She joined the Department of Human Resources (DHS) on 9 February 2009 and was engaged to work as an APS 4 Customer Service Officer. At the relevant time she was working at the Mayfield Service Centre of DHS, near Newcastle, New South Wales. The Applicant sustained an injury during a sporting event in the circumstances referred to hereunder.
Support for in Indigenous Employees of DHS
Each year an organisation known as National Aboriginal and Islanders Day Observance Committee (NAIDOC) conduct a week-long celebration of the history, culture and achievements of Aboriginal and Torres Strait Islander peoples.
DHS strongly supported such peoples. It published an Employees Plan 2016-17 in which the Secretary referred to the implementation of a number of measures to support “our Aboriginal and Torres Strait Islander peoples joining the Department and employees who are proud to let the Department know they are Indigenous Australians”.
The message concluded with an expression of gratitude to such employees for the development of the plan and continued: “[we] encourage everyone in the department to think about how they can actively support and contribute to the objectives it contains”.
Part of the plan contained a heading entitled “THEME 4-Workplace Culture” and stated, inter alia:
Commitment: Encourage and support all staff involvement in significant events and celebrations for Aboriginal and Torres Strait Islander Peoples such as NAIDOC week, National Reconciliation Week and Sorry Day, including local community celebrations and national events.
On 7 July 2017 a newsletter was published by North NSW Daily (entitled “Special Edition –NAIDOC 2 – 9 July”), which included the following:
The day also hosts the annual all-Important Netball competition. Tuggerah Smart Centre’s Tracy Reid three teams from Tuggerah Smart Centre which was great to see Departmental representation, well done Tracy [sic].
The Daily is described as the “Zone North NSW SharePoint”. It appears to be a publication of the Zone North NSW group which is in some way associated with DHS. If not associated, then it is plain that employees of DHS were provided with copies of the newsletter.
Within DHS a North NSW NAIDOC Week Committee was formed as the next celebration week was planned for July 2017. The applicant was nominated by DHS to be part of the NAIDOC/Reconciliation Committee on 1 February 2017.
Meetings of the NAIDOC Week Committee were held in the normal working hours of DHS, starting at 9 AM and finishing at 10 AM initially on a monthly basis and as the celebration week approached, on a weekly basis. Minutes were recorded for each meeting, listing attendees, a chairperson, and other details. A meeting was held early in 2017 and the second meeting was held on 27 April 2017. Minutes of such meetings were maintained on letterhead of the DHS.
One of the items referred to in the minutes was a question of funding and also the DHS Indigenous Servicing Strategy 2016-2017; the DHS Aboriginal and Torres Strait Islander Employees Plan 2016-17; and the DHS Reconciliation Action Plan 2015-2017.
DHS Policies
The Indigenous Servicing Strategy 2016-2017 is a strategy adopted by DHS. The purpose of such strategy is stated to be as follows:
The Indigenous Servicing Strategy provides a clear strategic direction to all departmental staff delivering services to Aboriginal and Torres Strait Islander peoples. It identifies priority areas and ways to measure progress, and it ensures indigenous Australians receive the right service for their circumstance.
Each priority area includes goals and proposed strategies to achieve these goals. All work areas involved in the design and delivery of services to Aboriginal and Torres Strait Islander peoples are encouraged to consider alternative or additional strategies to help meet these goals.
DHS also had a Reconciliation Action Plan which provided, inter alia:
The department’s RAP sets out the next steps in our journey to build opportunities for, and stronger relationships with, Aboriginal and Torres Strait Islander peoples. The plan recognises the importance of reconciliation and outlines the strategies and ideas that commit us to achieving the targets and outcomes. The plan also celebrates what we have achieved and looks at how we can share what we have learned with other government agencies.
The DHS also had an Aboriginal and Torres Strait Islander Employees Plan. The purpose of such plan is stated to be as follows:
The purpose of the Aboriginal and Torres Strait Islander Employees Plan is to improve the employment circumstances and future prospects for Aboriginal and Torres Strait Islander peoples in the department. The plan is to build a workforce reflective of the community we serve. We are striving to increase our Aboriginal and Torres Strait Islander workforce by 5% by the end of 2017.
The plan also referred to the need, described as a “critical element” of Indigenous servicing, in “maintaining strong relationships and working with others to achieve shared outcomes”.
Cultural Leave
Employees of DHS who are of Aboriginal descent are entitled to leave described as “Cultural/Ceremonial” leave. Cultural/ceremonial leave is defined by DHS as follows: “Cultural/Ceremonial leave including NAIDOC/Coming of the Light (Aboriginal/Torres Strait Islander employees only)”. Two days per calendar year is allowed for such leave and such leave is to be paid leave.
Pursuant to an agreement, described as “Department of Human Services Agreement 2011-2014” ceremonial leave may be granted as a category of Miscellaneous Leave as paid or unpaid leave pursuant to clause G 19. Pursuant to clause G 19.2, it is provided: “Ceremonial leave granted under this clause G 19 will count as service for all purposes”.
Applicant’s Participation
A Coaching Record is maintained by DHS to guide its employees in their employment. The applicant’s coach was Joshua Jones (“Joshua”), who is referred to as the applicant’s supervisor in subsequent records. Under the heading “Review of Previous Agreed Actions”, the following is stated in respect of the applicant’s record: “Kate to code cultural leave for NAIDOC Netball and local NAIDOC event in Newcastle”.
Under the heading “New Discussion Points Raised by Team Leader/Manager”, the record states:
SCM [Service Centre Manager] discussed with Kate the upcoming NAIDOC netball events around singlets and polo’s [sic] to provide measurements, Kate indicated she will provide measurements to Tracey next week to ensure a Team DHS shirt is ordered.
Under the heading “Agreed Actions from Today’s Session”, the following is relevantly stated:
Kate to code ceremonial leave in ESS and send Tracy a reply email with shirt sizing’s [sic] for NAIDOC netball.
Preparation for NADIC Celebration Week
On 10 January 2017, Tracy Reid, a DHS employee of the Age & Disability Processing section at the Central Coast Smart Centre, forwarded an email concerning the NAIDOC celebrations to various employees including the applicant’s supervisor, Joshua. The applicant states that either on this day or the following day, Joshua spoke to her and told her that DHS were looking to have staff participate in the celebrations. In particular, the applicant states that Mr Jones said words to the effect of “DHS are looking to put together a netball team as in past years”. The applicant also states that Joshua informed her that because of her Aboriginal heritage, it would be a good way not only to represent DHS but would be a good opportunity for herself to use the game as a networking event for her career advancement.
DHS operates in various zones of the Central Coast of New South Wales, and one such Service Centre was the Mayfield Service Centre. Whilst the applicant would usually attend events in the Newcastle region, she would not usually attend events outside of the area.
The applicant stated that at about 10 January 2017 she was considering applying for a more senior role in DHS, namely the role of Indigenous Services Officer (ISO). Such a role is one principally of liaison for DHS and the Aboriginal and Torres Strait Islander community. The role involves the ISO travelling to communities, schools and local councils to speak about DHS services and assist the community in understanding the use of the services. An ISO is also required to assist DHS customers at the office with any issues they are concerned with.
The applicant states that, following such request, she informed Joshua she would participate in the netball game in the NAIDOC week of celebrations. An email sent by the applicant on 11 January 2017 to Joshua relevantly states:
Subject: NAIDOC netball team Central Coast 5/7/2017
Hello
I would be interested in joining in on the NAIDOC Netball team please.
It should be noted that, in oral evidence, Joshua disputed the applicant’s claim that he stated that he wished the applicant to participate in a “DHS netball team”. However, he agreed that he may have used the words “to participate in a team made up of DHS members” or similar words. Further, an email was sent by Joshua to the applicant dated 10 March 2017 in which Joshua provided instructions to the applicant concerning the application for cultural leave. In this email, Joshua made the following comment regarding cultural leave for the netball game:
NAIDOC DHS Netball Team @ Bakers Park Wyong
By email dated 28 April 2017, Jason Bourke, a DHS employee, sent an email to certain members of DHS concerning funding and ideas for NAIDOC week. The email advised that funding was available for “outward facing or external events”.
Further meetings of the NAIDOC Committee were held on 18 May 2017 and on 8 June 2017.
The applicant paid for her shirt to be used in the netball game, and applied for cultural leave for both 3 July 2017 and for the day of the netball activity on 5 July 2017. She applied for 0.7 of a day for the first day, namely Monday, 3 July and for a full day on Wednesday, 5 July.
The applicant stated that it was understood that if the particular activity for which cultural leave was sought concluded in such time as would allow a return to work, it was expected that the employee would return to work unless permission was granted not to do so. Accordingly, on Monday, 3 July 2017, she attended the first day of the celebrations where DHS, and other organisations, organised stalls to inform members of the public of the particular services that they offer. As that event concluded during the afternoon, she returned to work at her office in Mayfield, a suburb of Newcastle. In fact, she worked that night until approximately 8 PM undertaking over time.
On 7 June 2017, Tracy Reid sent an email to a large number of netball team members, advising them of the team to which they were allocated and also attaching a code of conduct to be observed. It required each participant in the netball game to observe a Player Code of Behaviour. The code essentially set out the requirement that each player must conduct himself or herself in an appropriate manner. This email also stated that photos will be taken of the players on the day which would be used for future promotional use and placed on social media.
Events of 5 July 2017
The applicant states that she drove her car to the oval at Baker Street Wyong for the netball game. This was an approximately 45 minute drive from her home. She stated that she arrived at approximately 8 AM to 8:15 AM and remained in her car until she saw Joshua arrive. Both Joshua and the applicant were the only indigenous employees of the Mayfield Centre for DHS to participate in the netball game. All players in Team 1 (which included the applicant and Joshua) were DHS employees, except one person. Two other teams were also participating in the games.
Following the arrival of Joshua, the applicant met up with him and staff members of DHS from other branches who had volunteered to participate in the netball game. She wore a polo shirt which she had paid for. In fact, two different styles of shirts were available and were worn by members of the netball team. She was allocated to a team which was given the name “DEADLY”, as was Joshua. Emblazoned on her shirt was the word: “DEADLY”. The other type of shirt that was worn was more of a singlet style which also bore the word “DEADLY” and above it was displayed the words: “Department of Human Services”.
The netball game commenced at 9 AM on 5 July 2017. At approximately 10.30 AM, the applicant sustained an injury to her right knee. Joshua then arranged for the applicant to receive treatment, and drove her motor vehicle back to the Mayfield Service Centre.
The injury was diagnosed as a rupture to her cruciate ligament of the right knee. Surgery was required and a procedure described as arthroscopic ACL reconstruction using hamstring auto graft was performed by Dr Bruce Caldwell, Orthopaedic Surgeon on 22 August 2017. There is no dispute that the applicant suffered such injury whilst participating in the netball game.
Events Subsequent
Tracy Reid sent an email to DHS employees on 8 July 2017 enclosing photographs of the NAIDOC celebrations. The photographs included the participants in the netball game. The following comment was included in the email:
This was the biggest representation from the Department at the event that has been running for quite a number of years now.
On 11 July 2017, the applicant submitted a Workers Compensation Claim in respect of the injuries sustained at the netball game. In this application, the applicant alleged that at the time of her injury, she was “engaged in an employer approved activity”. The activity was described as: “Playing netball at NAIDOC in an employer approved activity”.
On 28 July 2017, the claim for compensation was denied. An application was then made by the applicant for reconsideration of the decision to deny compensation. On 14 September 2017, the decision to deny compensation was affirmed on the basis that the applicant’s injury did not arise out of employment or in the course of employment. The decision determined that the Applicant was denied compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for liability for a “strain of medial collateral ligament of the knee (right)” suffered on 5 July 2017.
ISSUES FOR DETERMINATION
The issue before the Tribunal is whether the applicant is entitled to compensation under section 14 of the SRC Act in respect of the right knee injury sustained on 5 July 2017.
Submissions
The applicant submits that the injury sustained by her occurred during an interval: on 3 July 2017, following her attendance at the NAIDOC celebrations, she returned to work, and she worked at her Mayfield workplace on 4 July 2017. The applicant intended to be absent from work on ceremonial leave for part of 5 July 2017 and then return to work unless she was excused by Joshua after the netball match. Accordingly, it is submitted that the applicant sustained the injury during the interval between her work on 4 July 2017 and her proposed return to work following a netball match on 5 July 2017.
Alternatively, the applicant submits that the provisions of s 6 of the SRC Act apply. particularly s 6(1)(c), which deems an injury to have arisen out of, or in the course of, his or her employment if the injury was sustained while the employee was temporarily absent from the employee’s place of work undertaking an activity “associated with the employee’s employment”. Accordingly, the applicant is entitled to compensation in respect of the injury which arose out of or in the course of her employment.
The respondent contends that the netball game was not organised nor supervised nor controlled by DHS. The netball game was not a specific NAIDOC event which was promoted by the Mayfield Service Centre. The activities of netball were far removed from the daily duties of the applicant whose usual work was essentially of a clerical nature. The injury was sustained in a place remote from her usual workplace in Mayfield. It was sustained whilst the applicant was on cultural leave away from her workplace and was engaging in a sport conducted by NAIDOC. For these reasons, the injury was sustained otherwise than as provided for in s 14 of the SRC Act.
Consideration
The submission that the injury sustained by the applicant occurred during a work interval cannot be sustained. As was observed in Gregory v Comcare Australia (1997) 72 FCR 196, an injury which occurs between two discrete periods of work will not constitute an injury which occurs in the course of employment. In the present circumstances, the applicant fulfilled her duties at work on the evening of 3 July 2017 and again on 4 July 2017. On each occasion she returned to her home with the intention of returning to her duties on the following day. Each day represented a discrete period of work. Such a period “breaks any temporal connection between the employment and the place at which all activity during which the injury is sustained”: see Gregory at 201.
In respect of the alternative submission made by the applicant, it is necessary to refer to several authorities concerning the question whether the applicant was engaged in fulfilling duties for her employer when she sustained her injury albeit away from her workplace.
In Comcare v PVYW (2013) 250 CLR 246. the High Court of Australia considered that three questions must be asked in determining whether an injury was compensable: firstly, it must be determined as a matter of fact whether an injury was suffered in the course of employment although not whilst engaged in actual work; secondly, whether the employer had been either engaged in an activity or present at a place when the injury occurred; and thirdly, how the injury was brought about.
The High Court referred to the decision in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 in which the High Court, by majority, held at 484:
Accordingly, it should now be accepted that an interval or interlude with 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 that interval or interlude at a particular place or in a particular way.
Such principle was adopted in PVYW (at [38]-[39]), where the majority said:
The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. 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? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer’s inducement or encouragement to be present at a place is not relevant in such a case.
Earlier decisions of the High Court have indicated that control over the employee is a factor. In Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, Dixon J said at 294:
The general principle governing the ascertainment of the “course of employment” appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. …That the workman is liable to the control of the employer is of some importance.
Dixon J continued that it required a consideration of the circumstances in which work is done and “on what, as a result, the workman is reasonably required, expected or authorised to do in order to carry out his actual duties.”
There are many instances where an injury has been sustained by an employee unrelated to his work: see for example PVYW; Mozny and Comcare [2018] AATA 1966; Kelly and Australian Telecommunications Corporation [1991] AATA 720; Commonwealth v Oliver (1962) 107 CLR 353; Hill and Comcare [2018] AATA 670; Wheele and Comcare [2010] AATA 200. In such cases, it has usually been held that the employee was on a “frolic” of their own at the time they were injured, and for this reason they were not entitled to receive compensation.
However, there are other authorities that consider the specific nature of the activity engaged in at the time the injury was sustained. In Roncevich v Repatriation Commission (2005) 222 CLR 115, a soldier was injured after returning to his private quarters from the sergeants mess where alcohol had been consumed at a function in honour of a distinguished service visitor. The majority held (at [18]):
The Tribunal erred in law in the application of this statutory criterion. It effectively ignored what the appellant was, as a matter of practicality, required or expected to do as part of his service in the army.
The majority in Roncevich at [23] referred to the passage quoted by Heery J in Henderson v Commissioner of Railways (WA) and said:
…whether an event arises in the course of an activity, or as here, out of “an activity”, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connexion must however be a causal and not merely temporal one.
In O’Loughlin v Linfox Australia Ltd and Anor [2015] FCA 1000; (2015) 235 FCR 164, the Full Court followed a similar approach where Bromberg J at [41] said:
Hatzimanolis was thus concerned with quite a limited area. The “course of employment” comprises duties and things incidental thereto. …Hatzimanolis was concerned only with the latter. Hatzimanolis said only that if the test set out at 484 is fulfilled, then an injury sustained in an interval within an overall period of work would have been sustained doing something incidental to the employee’s work, and therefore in the course of employment.
Other authorities clearly established that where an employee has been injured in circumstances where the activity has been “countenanced” or encouraged by the employer, the activity will fall within the scope of his employment: see for example Commonwealth of Australia v Lyon (1979) 24 ALR 300 at [45]-[50]. In that decision, Deane J said (at [45]):
Injury in the course of employment means an injury sustained while the worker is engaged in the work which is employed to do or in something which is a concomitant of, or reasonably incidental to, his employment to do that work (Kavanagh v Commonwealth (1960) 103 CLR 547 at p. 559; The Commonwealth v Oliver, supra, at p. 358). The course of employment is a temporal concept and it is unnecessary that there be any causal connection between the work which the employee is employed to do and the injury which he sustains (Kavanagh v Commonwealth, supra, at pp. 555, 570; Commonwealth v Oliver, supra at pp. 359, 362). The scope of what is within it depends upon “the sufficiency of the connection between the employment and the thing done by the employee” which “cannot but remain a matter of degree, in which time, place and circumstances, as well as practice, must be considered together with the conditions of the employment” (per Dixon J, Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 at 29, and see, generally, per Stephen J Bill Williams Pty Ltd v Williams [1972-73] ALR 303; 126 CLR at 158-9.
Other authorities referred to the necessity that the activity under s 6(1)(c)(i) must be “sanctioned, expressly or impliedly, by an employer or specifically be directed or requested by an employer”: see reference to the Explanatory Memorandum in Prieto and Comcare [2010] AATA 546 at [65]. See also Saunders and Comcare [2011] AATA 238 at [14]-[18]. In this decision the Tribunal found that the soccer match in which the applicant was injured was sanctioned by the employer and that the employer clearly encouraged participation and the employee was paid for time allocated to the soccer match.
In Comcare v Adrian John Mather and Irene Patricia Mitchell [1995] FCA 1216, Kiefel J considered the encouragement required to render this activity part of the service. At [22], Her Honour stated that the term “encouragement” was not to be “taken as of narrow meaning and limited to some positive action and in specific terms which might lead the employee to undertake a particular activity or attend at a particular place”. Her Honour continued:
To be said to have, expressly or impliedly, induced or encouraged an undertaking or presence at some location could refer to, by way of example only, requirements, suggestions, recognition of practices, fostering of participation, or providing assistance and may include the exercise of discretion or choice on the part of the employee. Further attempt at definition would be fruitless. In each case, the question will be whether the attendance at the place at which or the undertaking in which the employee is involved when injured in an interval falls within the ambit of statements, acts or conduct made by the employer and what may be said to logically arise from them. And in each case, importantly, they must be viewed in the background of the particular employment and the circumstances in which the employer is then placed.
Fullagar J in Kavanagh v The Commonwealth (1960) 103 CLR 547 (considering analogies but earlier legislation) said at 559:
And it necessarily follows, I think, that the words “arising in the course of his employment” ought not to be regarded as meaning anything more or less than “arising while the worker is engaged in his employment”.
Similarly, Dixon J said in Whittingham v Commissioner for Railways (WA) (1931) 46 CLR 22 at 29:
As the test is not, and could not be, whether the employee was obliged to act as he was doing when the accident occurred, the inclusion of things arising out of the actual performance of his duty was, no doubt, inevitable, but, as a result, the sufficiency of the connection between the employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment.
The recent decisions of the High Court such as Hatzimanolis, PVYW and Roncevich do not indicate that the element of control plays any specific role in determining whether the employer is liable where a worker is injured during a work interval. Rather, the critical issue is whether the employer has actively encouraged the employee to participate in the activity in which the injury was sustained.
Application of principles
It is beyond doubt that the applicant was encouraged by DHS to take an active role in promoting her Aboriginal heritage amongst clients of DHS. This was particularly so because of her Aboriginal descent. DHS was eager, as evidenced by its numerous policies, to promote good relations with the indigenous community. One such activity which was seen as an opportunity was participation in the NAIDOC celebrations.
The applicant was specifically requested if she would like to participate in the netball competition which was part of the NAIDOC celebrations. She stated that although she had played netball in the past, she probably would not have participated but for the request. The request was clearly made for the express purpose of encouraging DHS employees of Aboriginal descent to participate. Such a sporting activity was seen to be a prime example to further good relations. Indeed, it was for the benefit of DHS that such participation occurs. DHS clearly encouraged participation in NAIDOC activities, as evidenced by the fact that it permitted DHS staff to take time out of their working day to conduct meetings and to record minutes on DHS letterhead.
The email correspondence between the applicant and her superior, Joshua, clearly shows that he was encouraging her to participate in the netball game. There was to be at least one team made up almost entirely of DHS employees.
Joshua also encouraged the applicant to apply for cultural leave and showed her how the application was to be made. The applicant was also invited to pay for her shirt to wear in the netball game, and she did so. DHS then promoted, after the game, photographs and referred to the record participation of DHS employees in the NAIDOC celebrations. When the applicant sustained her injury, Joshua said that “as line manager I sought assistance from First Aid Officer at the NAIDOC event with the support of other colleagues of the Department”. Clearly, Joshua considered that he had some official role, on behalf of DHS, at the games. Joshua was present, having taken cultural leave as he, like the applicant, is of Aboriginal descent.
In addition to benefiting DHS in its quest to promote relations with its customers, particularly those of Aboriginal descent, it was put to the applicant, by Joshua, that her participation would enhance her prospects of promotion to the position of ISO. Accordingly, the presence of the applicant at the NAIDOC celebrations, and in the netball game, not only benefited DHS, but also benefited the applicant in her future employment prospects.
CONCLUSION
Unlike cases which have been referred to where injuries have been caused to employees in the course of sporting activities which were not sanctioned by the employer, the Tribunal is satisfied that the applicant was present and a participant in the netball activity solely as a result of the active encouragement received from DHS. The activity was associated with her employment, albeit she was on paid cultural leave at the time, because DHS saw her participation as a means of promoting its interests, as well as those of the applicant.
The participation of the applicant furthered the very important and frequently expressed objective espoused by DHS, mainly to promote better understanding and relationships with those of Aboriginal descent. Simultaneously, her participation in the netball game was considered by the applicant’s supervisor as being a means to assist her in her promotion prospects.
It follows that the Tribunal finds that the applicant’s injury arose out of, or in the course of the applicant’s employment within the meaning of “injury” is defined in s 5A of the SRC Act; that the injury was sustained whilst the applicant was temporarily absent from her place of work undertaking an activity associated with her employment as defined in s 6; and, accordingly, Comcare is liable to pay compensation for such injury pursuant to s 14.
DECISION
The reviewable decision, being the decision of Comcare made 14 September 2017 denying compensation for the applicant’s injury, will be set aside.
In substitution, it will be decided that the Respondent is liable to pay compensation for the applicant’s injury pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988.
I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President
........................[sgd]................................................
Associate
Dated: 20 December 2018
Date(s) of hearing: 13 and 14 November 2018 Counsel for the Applicant: Mr K Pattenden Solicitors for the Applicant: Slater & Gordon Lawyers Counsel for the Respondent: Mr R Ternes Solicitors for the Respondent: Comcare
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