Saunders and Comcare

[2011] AATA 238

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 238

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/5935

GENERAL ADMINISTRATIVE DIVISION		)
Re		Damon Saunders

Applicant

And  Comcare

Respondent

DECISION

Tribunal Senior Member A K Britton and Dr Hadia Haikal-Mukhtar

Date8 April 2011

PlaceSydney

Decision The decision under review is set aside and a decision substituted that the Respondent is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the injury suffered by the Applicant on 15 April 2009.

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

Senior Member A K Britton

CATCHWORDS

WORKERS COMPENSATION –applicant injured at soccer match organised by social club - “in the course of employment” – “associated with employment” - causal link between employment and injury – soccer match sanctioned by employer as employees permitted to take extended lunch break without loss of pay to participate in social club activities – employer’s internal communications system promoted soccer match – supervisor encouraged participation – decision under review set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A(1)(b), 6(1), 14

Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310

Prieto and Comcare [2010] AATA 546

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Commonwealth v Lyon (1979) 1 CCD 172; (1979) 24 ALR 300

REASONS FOR DECISION

8 April 2011  Senior Member A K Britton

1.      Senior Customs officer, Mr Damon Saunders, has applied to the Administrative Appeals Tribunal for review of a decision made by Comcare, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), to refuse to accept liability for an alleged injury involving his back that he contends was the result of his employment.

2.      Mr Saunders is employed by the Australian Customs and Border Protection Service (Customs) as a Senior Customs Officer (Customs Level 2). It is agreed that on 15 April 2009, Mr Saunders suffered a lumbar spine strain while warming up to play a soccer game that had been organised by the Social Football Club (soccer) from this point referred to as “the Football Club”.  Mr Saunders contends that Comcare is liable for that incident because it occurred “in the course of his employment”. Comcare on the other hand argues that the necessary causal link between Mr Saunders’s employment and injury has not been established.

Statutory framework  

3. By virtue of s 14 of the Act, Comcare will be liable to pay compensation in accordance with that Act in respect of any “injury” suffered by Mr Saunders if it results in impairment or incapacity for work. It is not in issue that the “incident”, to use a neutral term, resulted in Mr Saunders being incapacitated for work.

4.      “Injury” is defined by s 5A(1)(b) to include:

an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; …

Customs’ Social and Sports Club

5. The Customs Social and Sports Club (“the Social Club”) is an unincorporated association. Under its Constitution its aims and objects are stated to be:

To promote the welfare of members and the spirit of goodwill and comradeship between members by

(a) organising social and sporting activities.

(b) providing recreational and such other facilities as deemed appropriate.

6. Membership of the Social Club is open to all officers and employees of Customs and an employee or officer becomes a member of the Club upon payment of the prescribed fee: cls 3(a) and 3(b) of the Constitution. The patron of the Club is the Collector of Customs, NSW: cl 4(a). The Club is governed and controlled by an Executive Committee: cl 4(b). At the discretion of the Executive Committee, “sections” may be formed to represent specific groups of members. Sections are bound by the Club’s constitution: cl 4(d)(i). Each section must elect a committee which is responsible to the Executive Committee for the proper administration of the Section and, among other things, provide the Executive Committee with a program of proposed events etc: cls. 4(d)(iv) and 4(d)(iv).

7.      At the hearing the parties agreed that the Football Club is a sub-committee of the Social Club.  At the request of the Tribunal, after the hearing, the parties provided the Tribunal with a copy of the Social Club’s Constitution and minutes of meetings.  It would appear from that information that the Football Club constitutes a “section” within the meaning of cl 4(d)(i) of the Constitution of the Social Club. That is consistent with the understanding of the parties about the relationship between the Football Club and the Social Club.

The soccer match

8.      In an email dated 28 May 2009, addressed to staff of Customs, Mr Greg Rodgers, Mr Saunders’s supervisor wrote:

I would like to advise everyone that Rod [Mr Rod Vaughan, Director, Customs Information and Support Centre] supports the benefits offered by the Customs Social Clubs and is encouraging the active participation of all staff who are interested in being involved.

Below is a list of the current Social Clubs available: [The Football Club is apparently included in that list]

While Rod endorses these activities, we need to be mindful that due to the current shift arrangements and demands of our work area, supervisors are required to exercise some discretion when allowing staff to participate. Also please note that these types of activities may not be covered by Work Cover and will be assessed case by case.

The following guidelines have been given:

1. In good time please let your supervisor know when you intend to leave for a social activity.

2. Only (1) one social activity during the week for each person

3. Given the extra time allowed to attend to an activity, this will also count as your lunch break.

4. This time should not be used for any activity that is not an approved Customs Social Club activity.

In good spirit we hope that you all see this as an opportunity to participate in one of the number of social and fitness activities on offer.

I have also attached some related intranet links:

“Shift work v3.2 – Oct 2008.ppt inserted]

If you have any further questions or concerns please come and see me for a chat or just respond to this email.

So play friendly and enjoy.

9.      According to Mr Saunders, Mr Rodgers actively encouraged employees of Customs working in its call centre to participate in lunchtime soccer matches organised by the Football Club. He said it was not uncommon to receive between 20 to 30 emails around match day and further emails throughout the week advertising training and associated activities.  He could not recall what Mr Rodgers said to him on the morning of the soccer match, but claimed to be “pretty sure” that, as was usual practice, Mr Rodgers “stood over his desk’’ encouraging him to participate. According to Mr Saunders, Mr Rodgers drove him and three other colleagues to the match in his private vehicle. The match was held in a park a short distance from his workplace.  Mr Rodgers was a member of the team that played on the day of the incident. 

10.     There is no issue that on the day of the incident, Mr Saunders was granted an extended lunch break without loss of pay, to participate in the soccer match.  This is consistent with Mr Saunders’s understanding that the match was an “approved Customs Social Club activity” as referred to in Mr Rodger’s memo. Nor is it disputed that members of the Football Club’s team wore bibs carrying the logo of the Customs Credit Union or that there was no display in the match of any identifying logo, or similar, of Customs. Apparently the equipment used in the match had been funded by the Social Club.  There is no evidence to suggest that any equipment used was funded by Customs.

In the course of  

11.     Section 5A(1)(b) defines injury as “… a physical … injury arising out of, or in the course of, the employee's employment’.  As made plain from the use of the word “or” there are two limbs to the definition, only one of which needs to be satisfied.  The second limb involves a temporal element and requires simply that “the injury” be sustained “in the course of employment”: Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310.

12.     Section 6(1) sets out a non-exhaustive list of circumstances which may be treated as having “arisen out of, or in the course of, an employee’s employment” and relevantly include:

(c)  while the employee was temporarily absent from the employee's place of work undertaking an activity:

(i)  associated with the employee's employment; or

(ii)  at the direction or request of the Commonwealth or a licensee; or

…

13. There is no issue that the alleged injury occurred while Mr Saunders was temporarily absent from his place of work. While the parties differ on the extent to which Customs encouraged its employees to participate in the subject soccer match, the evidence in our view does not support a finding that Mr Saunders was either expressly or impliedly, “directed or requested” to participate in the match. Accordingly the soccer match did not fall within the scope of s 6(1)(c)(ii). Therefore we must consider whether “the activity”, namely the soccer match, was “associated with’’ Mr Saunders’s employment within the meaning of s 6(1)(c)(i) of the Act.

Was the activity “associated with” Mr Saunders employment?

14. Section 6(c)(ii) of the Act was inserted in the Act in 2007 as part of a package of reforms introduced by the Safety, Rehabilitation and Compensation and other Legislation Bill 2006. Its proper interpretation was considered in some detail by Senior Member Creyke in Prieto and Comcare [2010] AATA 546.

15. Noting that the Act does not contain a definition of the term “associated” the, Senior Member consulted the Macquarie Dictionary and decided that of the multiple meanings given, in the context of s 6(1)(c), the following two were the most appropriate:

1. to connect by some relation, as in thought; ... 9. anything usu. accompanying or associated with another; an accompaniment or concomitant’.

16.     The Senior Member considered that those definitions were “obscure” and thus resort to the Explanatory Memorandum was permitted, reasoning that:

The first meaning requires only that there be some connection or link; the second is that the relationship should be one which is usual, expected, or well understood. Since the first meaning does not provide a criterion for the connection or association, and the second ‘usual’ accompaniment or concomitant is open-ended, even the ordinary or dictionary meaning of the provision may be regarded as ‘obscure’.

17.     After considering the Explanatory Memorandum and noting the reference to the Productivity Commission recommendation that:

[C]overage for recess breaks and work-related events should be restricted, on the basis of lack of employer control, to those at workplaces and employer sanctioned events’

The Senior Member concluded at [65] that:

[I]t would only be activities sanctioned by an employer that are “associated” activities for the purposes of the section 6(1)(c)(i). That is consistent with the intent of section 6(1)(c)(ii). In other words the activity must either be sanctioned, expressly or impliedly, by an employer (section 6(1)(c)(i)), … What is sanctioned, expressly or impliedly, invites recourse to the facts and to guidance on this issue from the case law.

18.     The Senior Member also emphasised that, consistent with the Explanatory Memorandum, the existing line of case law — particularly that beginning with Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 — remained relevant. The High Court held that injuries which occurred between discreet periods of work “… will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way”: (at 484) per Mason CJ, Deane, Dawson and McHugh JJ.

19.     Mr Saunders argues that the following factors support a finding that the soccer match was “associated with’’ his employment:  

·Senior officers were present, including his supervisor who was one of the organisers of the Football Club

·Arrangements for matches organised by the Football Club were communicated to members across a Customs LAN e-mail

·The Football Club used an “official e-mail address” which according to Mr Saunders meant that the Club was seen as a “Customs endorsed entity”

·His usual 30-minute lunch break, was extended to one hour without loss of pay once per week to allow him to undertake Football Club soccer matches

20.     Comcare contends that the following indicate that the soccer match was not “associated with” Mr Saunders employment: 

·The soccer match was neither organised nor promoted by Customs

·No senior officers attended at the match

·The name or any identifying logo of Customs was not displayed at the match

·The match occurred during Mr Saunders’s lunch break

·Customs did not arrange transport to or from the match for any of its employees

·The match was not held at the work place

·Customs did not provide equipment

·The activity did not form part of Mr Saunders’s duties.

21.     Comcare contends that this matter is distinguishable from Commonwealth v Lyon (1979) 1 CCD 172 in which Deane J upheld the decision of the Commonwealth Employee’s Compensation Tribunal that Mr Lyon, who fractured his thumb during a lunch-time rugby match, had sustained an injury “in the course of’’ his employment with the (then) Bureau of Customs. Comcare contends that the level of employer encouragement and endorsement of the match in Lyons was more significant than in this case and points to the following: 

·The match was part of an interdepartmental competition and Mr Lyon was a member of the team drawn from the Bureau of Customs (then part of the Department of Business and Consumer Affairs)

·Members of Mr Lyon’s team were transported to the match in a Departmental bus and changed in and out of their uniforms in a Departmental amenity room

·The most senior officer of the Bureau of Customs, the Collector of Customs, attended the match

·An article about the match was carried in an official publication of the Department of the Customs

·Members of Mr Lyon’s team, the winning team were given the afternoon off to celebrate their victory.

Findings and conclusions

22.     That Mr Saunders was permitted to take an extended lunch break without loss of pay, while relevant, is not determinative.  An employer who, for example, allows an employee to leave early on a Friday or take time off with pay to attend medical appointments, cannot in our view reasonably be said to have sanctioned the relevant activity.  The nature of the activity is critical. 

23.     Here the activity had been organised by the Social Club, through the Football Club.  Although made up of members of Customs, each Club was independent from Customs.  As Comcare points out there is no evidence to indicate that Customs contributed to the funding of the soccer match or participated in the organisation of the match.  

24.     Nonetheless there are factors that point to the activity being sanctioned by Customs.  First, employees were permitted to take an extended lunch break once a week, without loss of pay, to participate in the match.  The offer by Customs to allow employees to participate in lunchtime activities without loss of pay did not extend to activities at large but was restricted to an “approved Customs Social Club activity”.

25.     Second, Customs permitted its internal communications system to be used to promote and advertise the event and associated activities, such as training. 

26.     Third, Mr Saunders’s supervisor, in advertising the event, did not direct Mr Saunders to participate, but clearly encouraged participation.  The activity was well-known to Customs, through its managers, and was encouraged, supported and approved of by Customs.  No doubt Customs saw the activity as beneficial to the organisation because of the overall health benefits officers obtained from playing soccer and because such activities are known to be beneficial to the morale of employees and are likely, therefore, to maintain or boost their productivity.

27.     Although in Lyon the rugby match was more fully integrated into the activities of the Customs Service than the soccer match in this case, that is merely a matter of degree.  Lyon does not impose a threshold, set a benchmark or provide a checklist of factors to be taken into account when assessing whether or not an activity of an employee is “associated with” employment.  Each case will turn on its own facts.

28. In our view, the fact that the activity in this case took place during working hours, employees were granted paid time to participate in it, members of the team were all Customs officers and, their supervisor(s) encouraged participation in the activity, overwhelmingly support the conclusion that on the balance of probabilities the activity during which Mr Saunders received his injury was “associated with [his] employment” within the meaning of s 6(1)(c)(i) of the Act. Therefore the injury may be treated as having been sustained “in the course of Mr Saunders’s employment” and accordingly, by the operation of s 14 of the Act, Comcare is liable to pay compensation in accordance with the Act. For these reasons we must set aside the decision under review.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Britton and Dr Hadia Haikal-Mukhtar

Signed:         .............................[sgd]...............................
  Associate to Senior Member Britton

Date of Hearing  9 February 2011
Date of Decision   8 April 2011
Applicant Self- Represented
Counsel for the Respondent     Ms R Henderson
Solicitor for the Respondent     Ms A Bortone, Sparke Helmore