October 7, 2014

An SA social worker on a three-month placement on Christmas Island who suffered Post Traumatic Stress Disorder as a result of her involvement with survivors of a boatload of asylum seekers that foundered on rocks with many passengers drowning had her claim for Workers Compensation rejected on the basis that she was not employed in SA.

The injured worker, who was employed by Life Without Barriers (an Australian public company with branches across Australia) disputed the decision to reject her claim in the Workers Compensation Tribunal, which had to determine whether her employment was ‘connected with SA’ so as to fall under the Workers Rehabilitation and Compensation Act.

That Act applies to a worker’s employment only if it is connected with South Australia, however there is a specific provision in the Act that simply because a worker is outside of SA when an injury occurs does not prevent an entitlement to compensation. Under section 6 of the Act a worker’s employment is connected with SA if this is the State in which they ‘usually work’ or if there is no particular State in which they usually work then if the worker is usually based in this State. In all other cases then the test is whether SA is the State in which the employer’s principal place of business in Australia is located.

The Act states that in order to decide whether a worker ‘usually’ works in a State their work history with the employer over the preceding 12 months and the intentions of both the worker and the employer just be taken into account. On the other hand, any temporary arrangement under which the person works in a State for a period not longer than six months isn’t to be included.

The insurer rejected the social worker’s claim on the basis that when her injury occurred she was engaged on a fixed term contract of employment for three months on Christmas Island (which is part of Western Australia) and that her previous employment in SA with the same company had been terminated before she went there. It was the worker’s case that she was performing a temporary three month secondment on Christmas Island as part of her continuing employment.

The Workers Compensation Tribunal therefore had to look at her history with the company and the facts relating to the assertion that her previous position had been terminated. She first commenced working for the company as a causal Youth Support Worker and was later made a permanent employee. Apparently because she subsequently obtained a degree in Social Work she was offered a three month position as a Care Coordinator (which required that degree). The company classified this as a secondment from her substantive position as a Youth Support Worker although she had sent an email to her manager advising that she was resigning ‘from Youth Support Work’ to start a position as Care Coordinator. During this secondment the company invited her to consider the fixed term three month full-time placement on Christmas Island as an independent observer of detained unaccompanied minors brought there.

Due to her work injury, on medical advice she returned to Adelaide about a week before the scheduled end of the job.

The Workers Compensation Tribunal found that the worker’s contract for permanent employment as a Youth Support Worker was simply varied from time to time to include temporary Coordinator and Independent Observer duties. This was based on a number of reasons including the fact that there had been a written application for paid annual leave during the period between the end of the Coordinator’s role and commencing work on Christmas Island which was approved by her manager and paid by the company, the payroll system of the company treated her as a continuing employee for the temporary work in WA and that the company didn’t in other way treat the change in duties as involving a termination of her permanent position.

As this case shows, determining whether a person who is injured outside of SA can make a Workers Compensation claim in this State will involve not just a review of the facts, but an application of those facts to the specific provisions of the Act. An experienced Workers Compensation Lawyer at Websters Lawyers can advise on whether the Act will apply, and assist in making the claim and securing the benefits to which an injured worker is entitled. Websters Lawyers offer a free initial consultation for any person who has or thinks that they might have a Workers Compensation claim.

Gooding v WorkCover Corporation (Life Without Barriers) [2014] SAWCT 27