Is it work?  The courts can’t agree

The courts recently had to decide if an injury received to an employee was as a result of his employment and therefore covered by workers compensation insurance. Depending on which court you ask, the answer will be different

The employee, Mr John Kennerley (Mr K) was a long-haul flight attendant with Qantas.  The motor accident happened approximately 500m from his home, and Mr K was off duty at the time of the accident. 

The court heard that Mr K required his USA visa to be updated and   crew members could not undertake the US flight schedule without a current US Visa.  Mr K lived on the Gold Coast and worked out of Brisbane, but the US visa office was in Sydney.  Staff had to get their visa’s in their own time, in Sydney.  Although off duty, Qantas did:- 

a)        provide free transport from Brisbane to Sydney (a "duty travel ticket") and made the travel arrangements; 

b)        pay staff an allowance of 6 hours in recognition of their effort to get their visa from Sydney; 

c)         reimburse staff for out-of-pocket expenses incurred in the visa application process and; 

d)        provide a letter of introduction to the US Consulate relating to visa renewal.  

Qantas also tracked the validity of Visa’s and had advised MrK of the expiry date of his visa, and provided a ‘visa pack’ outlining the steps required to renew a visa. 

The court also heard that Australians travelling on business or tourism for fewer than 90 days do not require a US Visa.  It was Mr K's employment which made the Visa necessary. 

The motor accident happened at the start of the journey, while driving from home to Brisbane, where Mr K was to have spent the night to enable him to catch a 5:00am flight to Sydney. 

To be successful in the compensation claim it must be shown that the 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.' 

The initial claim was rejected by the self-insurer, Qantas Airways Limited (Qantas),  

Mr K sought a review by Q-Comp, who set aside Qantas’ decision and ruled in favour of the injured worker.  

Qantas then appealed to the Queensland Industrial Relations Commission  (IRC). Qantas was successful. The Q-Comp decision was reversed. 

The worker then appealed the IRC decision to the Industrial Court of Queensland (ICQ) 

In re-examination, Mr K reaffirmed that he would not have been travelling if he had not been required to travel to the US Consulate the following day." 

Some further materials are deserving of mention:  

(a) The times at which long-haul crew might renew their US Visa's had been negotiated by Qantas and the US Consulate.  The times were limited and were all on the Thursday of each week.  

(b) Not only did Mr K pursue the Visa on "his own time", he was on annual leave at the time of the accident.  

(c) Mr K normally travelled from his residence to Brisbane Airport by train.  On the day of the accident, that option was not available.  The earliest Air Train was scheduled to arrive at the Brisbane Domestic Airport at 6.21 a.m., well after the 5.00 a.m. flight to Sydney had departed. 

The Industrial Court of Queensland (ICQ) set aside the decision of the IRC and found that the worker’s injuries were suffered in the course of his employment and his employment was a significant contributing factor to the injury.   Mr Kennerley won his day (‘s) in court   

http://www.qirc.qld.gov.au/resources/pdf/

published/2012/october/decision_c16_c18_2012_191012.pdf