Published: 25 February 2019
Author: Kellie Knowles

Queensland McDonalds worker wins compensation after breaking leg on smoking break. Do the same rules apply in Victoria? 

Case note: Mandep Sarkaria v Workers’ Compensation Regulator [2019] ICQ 1 (14 January 2019)

Queensland McDonald’s worker, Mandep Sarkaria’s, court battle to have her WorkCover claim accepted caught the attention of the media in Australia and around the world. The story had an underdog flavour and the facts made for colourful headlines such as “McDonald’s worker wins compo for smoko injury” and has caused every day Australians discussing the case nationwide.

Sarkaria’s case highlights the difficulties injured workers can encounter in establishing they were injured “in the course of employment” in order to have their claims accepted.

On 1 November 2016, Sarkaria arrived for work at the Richland’s McDonald’s store 10 minutes before the start of her shift, in accordance with the employer’s policy. She then climbed up a ladder to a roof to have a cigarette. On her way back down, she fell and broke her leg.

WorkCover Queensland rejected Sarkaria’s claim on the basis the she was not injured during her employment because it happened before her shift and was not associated with her duties as a crew member at the McDonald’s store.

The Queensland Industrial Relations Commission upheld WorkCover Queensland’s decision to reject the claim. Sarkaria then appealed to the Industrial Court of Queensland and in January 2019 it found in her favour and ordered that her claim be accepted.

The Court President, Justice Glenn Martin, was persuaded that Sarkaria’s claim should be accepted because her employer required her to be at work early. This was to assist with staff changeovers.

His Honour said that “although none of the employees at the restaurant would serve a customer, or cook food, or lift a mop from the time they arrived until their shift commenced they had, in my view, commenced work.”

Justice Martin considered that Sarkaria was on an “ordinary recess” when she was injured. In Queensland, an injury to a worker is taken to have arisen in the course of employment if it happens on a day they attended their place of employment and while they were temporarily absent during an ordinary recess and so long as they have not taken any abnormal risks of injury.

In Victoria there is a similar long-standing provision, which the Court of Appeal has noted is designed to avoid the difficulties that can arise in deciding whether an injury occurred during the course of employment when a worker is injured on a lunch-break or on some other recess, such as a tea break.

In the circumstances of Sarkaria’s case, the period of time before she started work was found to be an “ordinary recess” (“authorised recess” in Victoria) because her employer specifically required her to arrive early. This may not be so in every case since each case must be decided on its own facts. If a worker is injured while not actually performing their duties or on a recess, their entitlement to WorkCover often depends on them establishing a sufficient nexus between their employment duties and their injuries.

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