Worker’s compensation case could set precedent after pre-shift smoko ruled ‘enforced work break’

The case of a McDonald’s worker who broke her leg during a rooftop smoko could end up having far-reaching implications for workers whose bosses make them turn up to work before their official clocking-on time. 

A Queensland court recently ruled in favour of Mandep Sarkaria, categorising the time she was required to be at work before her official shift as an enforced work break, entitling her to workers compensation.

According to current Australian laws, an injury or disease must arise out of, or in the course of, employment to come within the coverage of workers compensation legislation.

This case now makes it clear that an employer requiring a worker to be on the premises outside shift hours can be termed as “within the course of” their employment.

Ms Sarkaria’s lawyer, Candice Heisler, said she had worked for McDonald’s for about seven years as a crew member, until she had her injury in November 2016.

“Mandy is a single mum, she has got a couple of kids. She is a hard worker,” Ms Heisler said.

“She usually worked the night shift at the Richlands McDonald’s store. She turned up at work 10 minutes before her shift, went for a cigarette, which was up a ladder and was up on a flat roof, out the back of the store.

“As she was coming down the ladder, she fell and had a quite serious break in her right leg.

“She hasn’t returned to work — certainly not at McDonald’s

Ms Sarkaria’s application for workers compensation was rejected by WorkCover Queensland.

Recently, on appeal, the Industrial Court of Queensland overturned this decision and ruled in favour of Ms Sarkaria.

“Our argument was that her employment conditions required her to attend for her shift 10 minutes before her actual shift commenced,” Ms Heisler.

“Her shift commences at 9:00pm — she turns up at 8:50pm.

“She can’t start work, so she can’t start her duties as a crew member until 9:00pm, but it’s just to help with the transition between the relevant staff.

“She was effectively given a forced 10-minute break before her shift starts.

Ms Heisler said it was common practice among staff to go up the ladder to the rooftop, and have a smoke break.

“So, in these types of claims, if it’s common practice and no-one says, ‘Hey, you actually need to stop doing that,’ the onus falls back on your employer to actually take steps to train and direct and instruct your staff that that is not a practice that is actually allowed.”

Ms Heisler said the decision in favour of Ms Sarkaria shows employees are entitled to make a compensation claim for injuries acquired before or after work, if they are required to be at work at a specific time.

SOURCE:

6 February, 2019

Damien Carrick

ABC News

https://www.abc.net.au/news/2019-02-05/workers-compensation-case-could-set-precedent/10780580