Newsletter 

Q4 - 2020  Oct-Dec.

# Motor accident on way home deemed to be work related

# Love and leadership - a match not always made in heaven

# Employers held responsible for domestic violence when staff work from home

# Two food delivery riders killed in accidents in one week

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Motor accident on way home deemed to be work related 

The Full Court of the South Australian Supreme Court found that the injuries suffered by a worker on a journey home had a real and substantial connection to his employment.

The worker sustained serious head injuries in a motor vehicle accident after his vehicle drifted off the road and into a tree as he was driving from his work to his accommodation sometime between 2:30am and 3:30am. The worker claimed workers’ compensation on the basis that the accident was caused by fatigue and because he was driving during a circadian low (when he would normally be asleep) and that the circumstantial evidence indicated that he had fallen asleep for reasons connected with his employment. In order to be entitled to compensation, the worker was required to show 'a real and substantial connection between the employment and the accident out of which the injury arises'. 

The trial Judge of the South Australian Employment Tribunal (SAET) dismissed the claim on the basis that there was no real and substantial connection between the worker’s employment and the accident out of which the injury arose. 

The appeal to the Full Bench of the SAET 

The worker appealed to the Full Bench of the SAET on the basis that the trial Judge’s reasons were inadequate. The Full Bench held that it was open for the trial Judge to reach his conclusion and dismissed the appeal. 

Appeal to the Full Court of the South Australian Supreme Court 

The Full Court found that the worker fell asleep due to work related causes. The Full Court considered that the case was a strong circumstantial one based on evidence that was not substantially disputed: the mechanics of the accident strongly indicated that the worker had fallen asleep; and that the accident happened during a circadian low after the worker had just worked a week of nightshifts. 

In considering whether there was 'a real or substantial connection' between the accident and his employment, the Full Court held that the construction of s30(5) of the Act did not require there to be a causal connection. Rather a satisfactory connection may exist where the employment merely increased the risk of the accident that occurred. The Full Court found that the worker’s shifts coincided with a circadian low which meant that the worker’s employment exposed him to a greater risk of an accident, and this was sufficient to establish a real and substantial connection. 

Love and leadership - a match not always made in heaven 

Priority ERP Pty Ltd (the employer) was a small business employer with 4 employees and Mr Unsworthwas the director.  Ms Ray was an employee and was involved in an intimate relationship with Mr Unsworth for approximately 7 years. Ms Ray was employed during the last 15 months of their personal relationship.

Tension within Mr Unsworth and Ms Ray’s personal relationship had heightened at or around the same time as the COVID-19 pandemic, which had already posed issues for the business. Ms Ray alleged that she had been dismissed, however, Mr Unsworth argued Ms Ray had resigned before he dismissed her.

Commissioner McKinnon examined the Whatsapp text messages exchanged between 22-23 March 2020, which were central in determining whether Ms Ray had been dismissed, or whether she had resigned. Upon scrutiny of the exchanges of text messages, it demonstrated Ms Ray was summarily dismissed on 23 March 2020.

The decision was that Ms Ray was found to be dismissed by Priority ERP on 23 March 2020, as opposed to having resigned.

The dismissal was found to be harsh, unjust and unreasonable, and not consistent with the Small Business Fair Dismissal Code.

The Commissioner outlined that despite the fact that the reasons for the dismissal were expressed in the text messages between 22 and 23 March 2020, there was no valid reason for the dismissal. 

Employers held responsible for domestic violence when staff work from home

The NSW Court of Appeal has ruled that employers can be held responsible for domestic violence when staff work from home. 

In a June decision, the court ruled against an insurer's appeal over a workers compensation case brought by the children of a woman who was killed by her de facto partner while working at home. (See Workers Compensation Nominal Insurer v Hill [2020] NSWCA54.) 

The mother left two dependent children, a teenage son and a baby just a few weeks old. The children made claims for workers compensation. The claim was resisted by the Workers Compensation Nominal Insurer on the grounds that the family company had long since been deregistered. 

In 2018 the Workers Compensation Commission determined the mother had died as a result of injury arising out of, and in the course of, her employment. The WCC ordered the insurer to pay $450,000 in favour of the two children, in accordance with workplace injury law. 

The WCC found the man had irrationally believed his de facto partner was conspiring to ruin his reputation and business, had spied on him and was unfaithful. At one point he even put her through a lie detector test. 

The insurer appealed, arguing the mother's death did not occur in the course of her employment, given that she was killed in her bedroom before work started at 9am and she was still in her pyjamas. 

Under section 9A of the Workplace Injury Management and Workers Compensation Act 1988, no compensation is payable unless employment is a substantial contributing factor to the injury. 

The WCC dismissed the appeal, saying she often worked at home outside regular work hours, her bedroom contained work files, and that the police found her death was between 8 and 10am. 

The Court of Appeal ruled in favour of the WCC's decision. The court found a "direct connection" between the man's delusions, her employment and the harm suffered by her. 

 Two food delivery riders killed in one week

The Transport Workers Union has confirmed that the two riders died in separate collisions while working for food delivery companies.

Dede Fredy died on Sunday, September 27th due to injuries sustained in a crash with a car three days earlier. Fredy was operating as an Uber Eats rider at the time.

Two days later, Xiaojun Chen was involved in a crash with a bus in Zetland while working for delivery service Hungry Panda. He subsequently passed away as a result of injuries sustained on Wednesday, September 30.