‘Tis the season for work social functions! December is often full of all kinds of social gatherings and get-togethers, both in and out of offices. Even though this time is centred around joy and fun, has your board and management teams made a list (and checked it twice) when it comes to the risks of having too much fun?

WorkCover Queensland recently hosted and presented a webinar on employer liability regarding injuries occurring at work social functions. The session deep dived into the key factors the courts consider, as well as some keen insights that should be brought to the top of your risk assessment lists prior to any end of year celebration events to help mitigate any antics worthy of the naughty list.

We have put together our key takeaways and some tips for those that enjoy an early present opening (see below), otherwise, feel free to read on for all the presents under the common law tree.

KEY TAKEWAYS:

• When an injury occurs and a claim is afoot, determining what is and is not ‘in the course of employment’ falls to a range of factors relevant to the set of circumstances – for example, when the work event may start and when it stops  – all cases are unique, just like Rudolph.
• When it comes to end of year work celebrations, workplace liability is not necessarily determined by whether attendance is ‘voluntary, unpaid, or occurs outside office hours’ – unlike Santa, you may not be able to escape down the chimney so easily.
• If an employer ‘encourages, induces, expects or authorises’ participation in a particular activity, an injury arising from that activity will, more often than not, be taken to have occurred ‘in the course of employment’ – if you leave out the milk and cookies, expect them to be eaten by the morning.
• If an employer takes a step back from an event or activity, then the employer may be able to distance itself from a claim. See Crowley v Pybar Mining Services Pty Ltd below, and the distinction between an employer encouraging participation in the activity, versus an employer notifying of the activity and asking for charitable donations.
• When it comes to the implications of work from home arrangements this has been commentated as “blurring the lines between the home and the workplace, and what is within and beyond the scope of employer’s responsibilities to eliminate and mitigate workplace risks.”[1]

TIPS TO CELEBRATE SAFELY THIS SEASON:

1. Undertake an assessment of the risk for injury – think about what is being planned and ask yourself, “is this a good idea for our team/people?” (ie. might be best to avoid being a real jockey if most of your employees are desk jockeys).
2. Take reasonable precautions to minimise the risk of injury where your celebration requires participants to undertake an activity of sorts – what precautions will you take to minimise risk?
3. Determine the right location for your activity and question whether it is the appropriate for the event – is your workspace appropriate for the safe and responsible supply and service of alcohol?
4. Ensure you set out clearly and notify attendees ahead of the event when it will start and stop, particularly noting that any continuation of the function by those in attendance are considered to be independent from the event.

STATUTORY CONSIDERATIONS TO BE AWARE OF:

An injury is a personal injury arising out of, or in the course of employment, if the employment is a significant contributing factor to the injury.[2]

An injury is taken to arise out of, or in the course of employment: [3]

1. When it arises out of employment, whether at the place of employment or not;
2. While a worker is temporarily absent during an ordinary recess, provided the worker was not voluntarily subjecting themselves to an abnormal risk of injury;
3. During a recess; or
4. On a journey between home and place of employment.
   2. a delay of 5-6 hours in a 2.5 hour journey was found to be significant,[4] whereas a conversation of 13 mins 42 secs in a carpark prior to leaving for a journey home of 14 mins was not a substantial interruption.[5]

A journey from or to home, starts or ends at the boundary of the land on which the home is situated,[6] but a journey from or to work starts or ends is less clear and falls to the facts of each individual case.[7]

SIGNIFICANT CASES TO LEARN FROM:

Key test: Whether an injury occurs in the course of employment depends upon whether the worker was doing something they were “reasonably required, expected or authorised to do in order to carry out their duties” (Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 133; [1952] ALR 46 at 48, Dixon J)

Key questions: 1. Did the injury occur in the course of employment? 2. Is the injury connected with the employment?

Cases of an injury occurring ‘in the course of employment’

Hattenfels v Richards Panel Pty Ltd [2022] NSWPIC 2013

Facts:

• A Christmas party function hosted at a local tavern, where meals and alcohol were provided for employees. The tavern closed at 12:30am.
• At the direction of the office manager, employees travelled back to the residence of the office manager in maxi taxis where more alcohol beverages was supplied – both were paid for by the employer.
• The manager owned a golf cart that was designed for 2 passengers.
• At 3am, a group of 3 took the golf car (with permission) to observe kangaroos. The claimant and another employee also jumped on the back at some point of the drive as it continued to be driven slowly and not recklessly (total 5 people on the cart).
• At some point, the claimant fell off and suffered a serious head injury, but it is not known how this occurred.

Decision and findings:

• It was found that the injury did occur in the course of employment. Why?
• There was no interruption or deviation from the intended beneficial purpose to the employer for facilitating a harmonious working group at a Christmas celebration at the tavern and at the employer’s premise.
• The continuation of the social activities at the employer’s premises was seamless, despite it being a new venue.
• The event was exclusively for and attended by employees only.
• The act of jumping onto the golf cart, which was being driven slowly with lights on, was ‘light-hearted and fun’ and was considered part of the social activities of the event.

 Shirley Joy Cooper v Q-Comp (C/2010/38) 26 November 2010

Facts:

• The employer held a Christmas day event for patients and sought volunteers to assist with the set-up and pack-down. The worker volunteered and helped unpack 50 tables and 450 chairs.
• The worker did not expect payment and was not paid for this effort.

Decision and findings:

• It was found that the injury did occur in the course of employment. Why?
• The employer tried to argue that the employee was ‘not’ an employee at the time, but a volunteer and therefore outside of employment arrangements. This was not accepted.
• It was not necessary to distinguish between staff volunteers and church volunteers, as it was material to distinguish that the worker had a contract of service with the employer, whereas the other volunteer did not.
• The employer used staff meetings to seek out volunteers.
• The activity that the worker participated in was one the employer expressly encouraged workers to participate in for its own benefit and therefore deserved compensation.

Cases of an injury occurring not ‘in the course of employment’:

Crowley v Pybar Mining Services Pty Ltd [2017] NSWWCCPD 10 (29 March 2017)

Facts:

• Workers of another employer organised a fundraising event which involved a rugby league game with some employees of the claimant’s employer. Workers of both employer’s participated in the event on their own accord.
• The worker’s employer circulated email reminders of the event within their workplace.
• The claimant worker sustained an injury during the game.

Decision and findings:

• It was found that the injury did not occur in the course of employment. Why?
• There was no evidence produced to show the worker’s employer had expressly or impliedly ‘induced or encouraged’ the worker (or others) to participate in the rugby game.
• Silence does not equate to a degree of implied encouragement nor authorisation.
• By circulating an email reminder to employees, it did not amount to encouragement as it only reminded employees of the charity event and that donations were appreciated.
• A comparison was made between the two workplaces and the other workplace was successfully argued to be significantly more involved in the event than the worker’s employer.

 Collins v Signature Blend Pty Ltd [2015] NSWWCCPD 22

Facts:

• Collins was an employee, manager and sole director of the employer.
• Employees were invited to attend a Christmas lunch at a restaurant where the cost was met by the employer.
• At the end of lunch, Collins suggested that they go to his home. All but 2-3 employees did so.
• There were no formal arrangements prior to the end of the event that the event would carry on at Collin’s home and there was no clear evidence of any inducement or encouragement for the group to go to Collin’s home.
• The travel arrangements to the residential home, and the further supply of alcoholic beverages, was unclear and disorganised at the time, and noted that both were independently arranged and paid for.
• Collins participated in the consumption of alcohol and illicit drugs, at the lunch and later at his home. He suffered an injury when he fell from his balcony.

Decision and findings:

• It was found that the injury did not occur in the course of employment. Why?
• The mere fact that Collins participated in the activity did not mean that the employer provided the necessary inducement or encouragement to make the gathering at his home a continuation of the work function.
• What happened after the lunch was not a ‘seamless’ continuation of a work function at the home.
• The employer did not induce or encourage Collins to engage in the behaviour/activity that resulted in him falling from the balcony, including being intoxicated, under the influence of an illegal drug, and jumping on a wet and slippery balcony.

*Nb. Please note that the information shared in this article is generic and should not be considered as legal advice. 

References:[1] Productivity Commission (2021), ‘Working From Home: Research Paper’, accessible online via <link>.

[2] Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) s 32.

[3] Ibid ss 34-36.
Further note: For b), c), d), employment need not be a significant contributing factor; for d), it is not taken to be a journey if there is a significant interruption (ie. substantial delay before starting journey, or deviation from journey).

[4] Workers Compensation Regulator v McCool (as administrator of the estate of Shane Patrick McCool) [2022] ICQ 4

[5] Sucrogen Australia Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 74

[6] Ibid s 35(3).

[7] Teys Australia Food Solutions Pty Ltd v Q-Comp & Polichronis [2013] QIRC 8; where the claimant was sexually assaulted in the employer’s car park, after already having passed through security gates on their way to work. In that case, the claim was upheld on the basis that it was a journey claim.