Mcdonald’s Worker Wins Compensation After Breaking Her Leg On Smoke Break

By Renee Karakinos, Lawyer, MST Lawyers 

In a recent case, the Industrial Court of Queensland determined that a McDonald’s employee was entitled to compensation after breaking her leg falling from a ladder on a smoke break. The case is a timely reminder for employers to clearly communicate prohibited areas to their employees and continuously update their employment policies.

 Background

On 1 November 2016, Mandep Sarkaria attended work at the McDonald’s Restaurant at Richlands. In accordance with the policy imposed by her employer, she arrived 10 minutes before the commencement of her shift. In those 10 minutes preceding the start of her shift, she climbed a 3-metre ladder inside a storeroom to gain access to the roof of the premises to smoke a cigarette. Later, as she descended the ladder, she fell and broke her right leg.

Legal Framework

This case concerned section 34(1)(c) of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) (the Act), provided below as follows:

34     Injury while at or after worker attends place of employment

 (1)    An injury to a worker is taken to arise out of, or in the course of, the worker’s employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker’s employment—

 …

 (c) while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themself to an abnormal risk of injury during the recess.

The Industrial Court of Queensland overturned the dismissal of Mandep’s appeal and found her liable for a workers’ compensation claim because she was on an “ordinary recess” at the time of her injury.

The employer’s policy states that employees must arrive 10 minutes before their shift. Accordingly, it is an ordinary consequence that employees attend at the workplace a set time before the shift starts and there be an “ordinary recess” between the time required to attend at work and the commencement of the work period.

The term ‘ordinary recess’ is not defined in the Act, but is generally understood to refer to a brief interruption or break in a continuous period of work (e.g. resting, getting a drink, having afternoon tea, having a smoke etc.). In this case, a ‘recess’ was found to include the 10 minute period that the employee was required to attend work and the commencement of the work period. In other words, a recess arose due to the employer’s requirement that employees attend work 10 minutes before their rostered start time.

The present case is consistent with a recent trend concerning out of hours conduct and the meaning of the ‘workplace’. For example, in the unfair dismissal jurisdiction of the FWC (Colwell v Sydney International Container Terminals Pty Ltd [2018] FWC 174 – accessible here), the FWC found that an employee forwarding sexually explicit content to 19 colleagues from his residence at approximately 10:40 p.m. occurred in the course of his employment and constituted a valid reason for dismissal.

Consequence For Employers

It is clear that the ‘workplace’ is not necessarily confined to the explicit work period stated on a roster or the physical address of an employer’s premises.

In view of this, employers should revisit their policies and consider:

  1. whether they have clearly delineated the boundaries of the workplace to their employees; and
  2. whether the prohibited areas within the employer’s premises have been clearly communicated to employees.

For more information, please contact the Employment Law team by email or call +61 3 8540 0200.