Coffee-break scuffle, employer pays compo

by Elizabeth Barnard27 Aug 2012

A decision by the Administrative Appeals Tribunal (AAT) has addressed a violent incident which occurred between employees of the Australian Taxation Office (ATO) who were on a coffee break.

In the case of Ralser and Comcare [2012] AATA 510, the AAT addressed the question of employer liability in off-site incidents and the responsibility to provide workers’ compensation for injuries sustained during the course of coffee breaks.

A group of employees were on a coffee break in a nearby café when a disagreement arose between the two co-workers. During the disagreement, it was found that the compensation Applicant flicked hot coffee in his co-worker’s face and, in response, the co-worker punched the Applicant in the upper right arm. These facts were not disputed during the hearing. In commentary provided by workplace law experts at Norton Rose, the Applicant subsequently made a claim for workers’ compensation under the Safety Rehabilitation and Compensation Act 1988 in respect of injuries arising out of the incident, including a contusion and associated swelling in his arm, along with a spinal injury caused by jarring or whiplash caused by the punch. The claim was refused and the matter was reviewed by the AAT.

Upon review, lawyers at Norton Rose said the AAT was required to consider whether the injuries occurred in the course of the Applicant’s employment or whether the injury to the Applicant occurred while he was temporarily absent from his place of work undertaking an activity associated with his employment.

The claim was ultimately rejected by the tribunal because:
 

  • while it may have been common for employees to take coffee breaks, the evidence did not establish that the timing and frequency of such breaks was regular or that the grouping of employees was determined on the basis of employment duties or functions;
     
  • the fact of discussing work matters while undertaking a social activity outside of work does not render the activity within the scope of employment;
     
  • there was no evidence that the Applicant’s supervisor was aware of the coffee breaks or that employees were required to obtain approval or authorisation for such breaks and, in any event, such findings would not necessarily have brought the activity within the course of employment; and
     
  • the Applicant’s attendance at the café on the day he was punched was not an incident of his employment, nor was it related to the performance of his duties or functions.

However, in relation to claims of injury as a result of anxiety and depression arising from the punch, it was held that the Applicant’s perception of bullying and harassment significantly contributed to his psychological symptoms. The AAT therefore acknowledged that a range of stressors impacted on the Applicant having a susceptibility to having a perception of bullying in the workplace. On these grounds, the Applicant was held to have suffered an injury for which Comcare was liable.

Norton Rose provided the following employer takeaways:
 

  • Employers need to be aware that legal risks in relation to bullying and workplace harassment may also arise when an employee has a ‘perception’ of that conduct occurring.
     
  • Employers should ensure that complaints of bullying and workplace harassment are dealt with by investigating the complaints when they arise and providing clear reasons to an employee as to investigation findings when they are made.
     
  • The concerns of employees should be dealt with sensitively even when allegations are not substantiated, and this may require workplace mediation and employee assistance support.

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