Newsletter 

Q3 - 2020  July-Sept.

# Industrial manslaughter is now an offence in Victoria

# When is being at work, not being at work

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Industrial manslaughter is now an offence in Victoria

The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic) inserts a criminal offence of workplace manslaughter into the new Pt 5A of the Occupational Health and Safety Act 2004 (Vic). This took effect on 1 July 2020.  

Under these new laws, a person or employer who or which negligently causes a workplace death faces a fine of up to $16.5 million, in addition to up to 20 years jail for individuals. 

The Act describes negligent conduct as involving 'a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in' and a high risk of death, serious injury or serious illness. 

When is being at work, not being at work

This was the issue that was recently considered by the Federal Court in Dring v Telstra Corporation Limited [2020] FCA 699.

Attending work conferences should be noth educational, Motivational and sometimes even a bit of fun with post conference soicialising with work colleagues. 

In this case Ms Dring met a colleague and spent the night socialising which included sharing part of a bottle of champagne, white wine with dinner and then going to a cocktail bar before returning to the hotel room at about 2:30am the following morning. Nothing wrong with any of this! 

Unfortunately, when the pair arrived back at the hotel, “Ms Dring found herself in urgent need of a bathroom.” Unable to wait until she got back to her hotel room, Ms Dring “visited the public restrooms”. While she was in the bathroom, the “tiled floor area outside of them was mopped”. When Ms Dring emerged from the bathroom, she slipped and “suffered a contusion to her left hip”. 

In Ms Dring's case, the critical issue for the Federal Court to determine was whether there was any connection between her injury and the course of her employment. 

The Federal Court acknowledged that where an employee suffers injury at a place that they have been encouraged to spend time at during a break between periods of work, it will ordinarily be accepted that the injury occurred in the course of the employment. 

However, the court identified that there might be something about the way in which an employee spends their time at a particular place that severs any connection between the injury and their employment. 

The Federal Court determined that whilst there was nothing exceptional about an employee enjoying a drink at a tavern located within a camp at which they are temporarily accommodated, or sleeping within camp accommodations or having a shower at a hotel room whilst on a work trip, the same could not be said about the extent of Ms Dring's socialising. 

Given that Ms Dring was in Melbourne for work, attended work that day and was due to attend work the following day, Snaden J concluded:

 “There is no doubt that the injury that Ms Dring sustained can … be thought to have arisen in the course of her employment more readily than would be the case had it arisen during an interval separating two typical work days”. 

“the association which must necessarily exist … between the circumstances in which the employee was injured and the employment”. It will always be necessary to have regard to the ‘general nature, terms and circumstances of the employment’ in determining the overall question and attention is not to be focused just upon the occasion giving rise to the injury.”  

In relation to Ms Dring's circumstances, His Honour held – 

Ms Dring's injuries were a result of the activities in which she had been engaged and that those injuries did not occur merely by reference to a place; notwithstanding that an injury was associated with a particular place, circumstances might nonetheless not be sufficient to bring that injury within the course of the employment. The employee’s own conduct might indicate a lack of connection with employment; 

as the Tribunal found: 

"common sense would dictate an employee required to be at work the following day would be expected at this hour of the night to be securely in her hotel room, which had a serviceable bathroom which she could have utilised, placing her at no risk of falling on a recently cleaned floor”. Again, no disapproving undertones should be read into that. The import of that observation is simply this: by reason of the fact that her injury occurred at the time that it did, after the extensive socialising that preceded it and in the context of the work to which she was to attend later that morning, the circumstances that gave rise to Ms Dring’s injury lacked a connection with her employment sufficient to constitute it as one that arose out of, or in the course of, her employment"  

the line is not easily drawn:

 "If Ms Dring had slipped over after returning to her hotel room at 10:30pm instead of 2:30am, for example, it might well be that a different outcome would have been warranted. Had she returned at 7:30am, the conclusion might have been clearer’