Wheele and Comcare

[2010] AATA 200

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 200

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3397

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DAVID WHEELE

Applicant

And COMCARE

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date24 March 2010

PlaceSydney

Decision The decision under review is AFFIRMED.

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

M D Allen, Senior Member  

CATCHWORDS

WORKERS COMPENSATION.  Applicant injured while playing in a team representing his employer.  Was he injured in the course of his employment or in an activity associated with his employment.  Held - although in a representative team, activity was of a private and social nature.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 Ss 5A(1); 6(1)(c).

CASES

Gregory v Comcare Australia (1997) 72 FCR 196

Re Richardson v Comcare (1996-97) 46 ALD 440

Humphrey Earl Ltd v Speechley (1951) 84 CLR 126

Comcare v Mather and Mitchell (1995) 56 FCR 456

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

REASONS FOR DECISION

24 March 2010 M D Allen, Senior Member            

1.The Applicant is a member of the Protective Services division of the Australian Federal Police (“AFP”) who injured his knee whilst playing a game of soccer as a member of the AFP team at the 2008 Australian Police and Emergency Services Games (“the Games”).

2.The issue in the current proceedings is whether the Respondent is liable to pay compensation, pursuant to the Safety Rehabilitation and Compensation Act 1988 (“SRC”) to the Applicant in respect of that injury.

3.The Applicant based his claim upon two provisions in the SRC Act, viz:

Ss 5A(a) in that the injury arose out of or in the course of his employment with the AFP; or

Ss 6(1)(c)(ii) in that the injury was sustained while he was temporarily absent from his place of work undertaking an activity associated with his employment.

4.As is pointed out by the editors of Ballards Annotated Safety Rehabilitation and Compensation Act 1988 8^th edition at page 124, decisions on the course of employment turn much on the particular facts and circumstances of each case.

5.The essential facts in this matter are not disputed by either side and can be summed up as follows:

(i)The Applicant is a Protective Services Officer stationed at Sydney Airport.

(ii)Via the AFP internal email system he became aware that the 2008 Games would be held at Coffs Harbour between 11 and 18 October 2008.

(iii)The Applicant had attended previous Games and for 2008 nominated to play in the AFP Soccer team.

(iv)No selection trials were held for the team.

(v)In order to attend the Games the Applicant took a combination of annual leave, rostered days off and stand down days.  He paid his own travel and accommodation expenses.

(vi)The soccer team members were identified as being from the AFP by a notation on their football socks.

(vii)The team members were also supplied with polo shirts for casual wear which shorts had a platypus on them.  The platypus symbol denoted to those aware of such things that the wearer was associated with the AFP.

(viii)The football kit and the polo shirts were provided to the players by the AFP National Sports Federation.

(ix)The AFP National Sports Federation is a privately run entity for serving and retired personnel of the AFP.  It is self-funded through members’ contributions via an annual subscription.

6.Ms Ho, who is the rehabilitation case manager at the Human Resources Branch of the AFP at Sydney stated on 15 March 2010:

“the AFP supported attendance at the Games insofar as permitting publicity across the AFP electronic network, providing the accommodation and travel costs of a ‘Team Manager’ who also performed the roles of official photographer and AFP delegate to the Games.  However, the sports shirts were provided by the Australian Federal Police National Sports Federation (AFPNSF), not the AFP, and did not carry the AFP branding.  The AFPNSF is a sporting association that was founded by AFP employees but is a separate entity with its own constitution and is self funded through membership fees”.  

7.In a previous statement dated 2 December 2009, Ms Ho said of the Games, and whether AFP were required to participate:

“Participation is voluntary and in the employee’s own time unless their business area gives permission for them to attend during official work time.  However, there is no standard practice, about the utilisation of work time or own time for The Games, across the AFP.  Travel and accommodation costs are met by the employees and the AFP makes no contribution to these.”

She added:

“The AFP allows for the dissemination of information on The Games through official communication channels such as the AFP email system and posters on social networking boards.  With team events, employees are permitted to use the AFP name but the AFP does not sponsor the Games or any employee teams and also do not provide uniforms or any other financial support other than the costs of travel and accommodation by the Secretary of the AFP National Sports Federation. The promotion of the event is usually undertaken by the Sports and Social Club of each geographic location and not by senior management.  Participation of the Games is voluntary.”

8.Senior Member Purcell in Re Richardson & Comcare (1996-97) 46 ALD 440 at 445 in a matter analogous to the Applicant’s, referred to the test laid down by Dixon J (as he then was) in Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at133 viz:

The acts of a workman which form part of his services to his employer are done, needless to say, in the course of his employment.  The service is not confined to the actual performance of the work which the workman is employed to do.  Whatever is incidental to the performance of the work is covered by the course of the employment.  When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something that was reasonably required, expected, or authorised to do in order to carry out his duties…”

9.In Gregory v Comcare Australia (1997) 72 FCR 196 at 201, Cooper J was able to distinguish the High Court decision of Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 stating:

“The judgement of the majority in Hatzimanolis did not, in any view, affect the proposition that for an injury to be said to arise in the course of employment the connection which must be established between the occurrence of the injury and the employment is a temporal connection (see Commonwealth v Lyon at 303-304).  What their Honours did in Hatzimanolis was provide to tribunals of fact reasoned guidance, by way of a ‘unifying principle’, in determining whether that temporal connection exists in circumstances where the injury in question is sustained during an interval between periods of actual work.  Their Honours concluded that the distinction between a compensable and non-compensable occurring in such an interval, where the employer had induced or encouraged the employee to spend the interval at a particular place or in a particular way and the injury was sustained at that place or while the employee was engaged in that activity, was to be drawn by a characterisation of the period or periods of work of the particular employee.  That characterisation highlights the temporal nature of the connection between the place or activity at or during which the injury occurred and the employment.

The logical corollary of the approach adopted by the majority in Hatzimanolis is that, ordinarily, an injury which occurs in an interval between two discrete periods of work, even if the injury occurs at a place or in the course of an activity which the employer induced or encouraged the employee to spend the interval in or doing, will not be an injury which occurs in the course of employment.  This is because, putting aside injuries suffered while travelling to and from work and the like which are specifically provided for under the Act (see s 6), the end of the discrete period of work breaks any temporal connection between the employment and the place at which or activity during which the injury is sustained.”

10.However in Comcare v Mather and Mitchell (1995) 56 FCR 456, Kiefel J (as she then was) considered Hatzimanolis supra and stated at page 461:

“That the formulation of principles required both a consideration of how the interval was placed in the scheme of the work involved in the employment and what the employer had said, done or encouraged concerning the activity or location of the employee within that interval is clear from the passage I have set out above and from the application of it to the facts of that case.”

adding at page 462:

“In my view ‘encouragement’ is 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…  The facts in Hatzimanolis did not require the Court to discuss in greater detail what was encompassed by the phrase “induced or encouraged”.  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.”

11.On the specific facts in this matter I find that whilst the AFP facilitated the Applicant’s attendance at the Games, it did so in the context that those attending did so in their own private capacity.  I adopt what was said by the Administrative Appeals Tribunal (“AAT”) at first instance in Gregory supra, viz:

“Tacit approval, permission or even encouragement by employers for their employees to enjoy each others company (and in this case the company of others in like occupations) should not necessarily leave the employer open to a claim such as this for compensation consequent upon an injury arising out of a social event.”

12.Counsel for the Applicant also submitted that the Applicant’s injury arose out of an activity associated with the employee’s employment.

13.I find that the injury did occur while the Applicant was temporarily absent from his place of work.  The concept of a temporary absence is an elastic one, for example is a person on annual leave temporarily absent from his or her place of employment or can they in context simply be said to be “absent” from work.

14.Notwithstanding the vexed concept of what is a temporary absence, I find that in this matter the Applicant’s attendance at the Games was not associated with his employment.  He attended the Games, because his employment entitled him to do so, and he can be said to have been representing his employer but I do not accept that his activities were associated with his employment in that his activities were in no way analogous to or associated or connected with the duties carried out by him as a protective officer of the AFP.

15.For the Applicant it was also submitted that as on a previous occasion a fellow AFP officer injured whilst attending the Games received benefits under the SRC Act, it was equitable, having regard to S 72 SRC Act that he also should be compensated.  Whilst I have sympathy for the Applicant’s position, each case must be decided individually and if the Respondent, for whatever reason, seeks to apply the law this Tribunal can only make its decision based on what it determines is the correct interpretation of the legislation before it as applied to the facts as found.

16.For the reasons above, the decision under review is AFFIRMED.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         .....................[sgd]........................................
  K. Lynch, Associate

Date/s of Hearing  17 March 2010
Date of Decision  24 March 2010
Counsel for the Applicant         Michael Smith 
Solicitor for the Applicant          Slater & Gordon Lawyers
Solicitor for the Respondent     Dibbs Barker
Counsel for the Respondent     Rhonda Henderson