Social functions, sporting events & lunch at the pub: where does an employer's liability start and end?
In this bulletin we provide guidance on minimising the risk of injuries and claims from activities during recesses and outside work, such as, at work sponsored social functions and sporting events and activities.
Sports and Activities Outside work hours
If a worker participates in sport or similar activities outside work hours and the employer has not induced or encouraged the worker to participate in the activity, it is highly likely that any injury sustained whilst engaged in the sport or activity after work hours will not be compensable. However, if the employer pays registration fees and/or the cost of shirts, uniforms or equipment or management organises or encourages or supports the activity and the employer derives some benefit, there is a greater chance the Commission will find the activity was induced or encouraged by the employer. In those circumstances, any resulting injury is likely to be compensable.
Sports and Activities During Recesses
In relation to sports and activities during lunch breaks and ordinary recesses within work hours, if the activity is induced, encouraged or acquiesced by the employer or management, employment could be found to be a substantial contributing factor to any injuries sustained during such activities. In those circumstances the worker may establish an entitlement to compensation under sections 4 and 9A of the Act without having to rely on the recess claims provisions and the potential employer defence available in recess claims would not apply.
Each employer has to weigh up the risks and benefits of such activities. Banning informal games of lunch time cricket or basketball may or may not have an adverse affect on workplace morale and the risk of injury will be variable. If such games are taking place informally in areas of the work premises where there are slip, trip or collision hazards then the usual risk assessment must take place and, if appropriate, the game or activity may need to be banned or modified or the workers directed to play the game in an area or in a manner that is safer. Heavy contact sports like rugby league or rugby union pose a greater risk of injury or serious injury than other lunch time sports such as touch football, jogging or swimming. Employers could encourage workers to participate in alternative sports which do not involve heavy physical contact or a high risk of injury.
If the sport or other activity carried out during the recess was not induced, encouraged or acquiesced by management and a worker suffers an injury, a potential defence under the section 11 recess provisions could arise. An injury sustained during a recess is not compensable if during the recess or authorised temporary absence the worker voluntarily subjected him/herself to an abnormal risk of injury and suffered such an injury. This could be a defence in circumstances where a worker played a sport with a high injury risk and suffered such an injury or where a worker drank to excess during a lunch break and had a fall or an accident which was more likely to have occurred in circumstances where they were affected by alcohol.
Workers who have crossed busy highways in dangerous circumstances during recesses have failed in their recess claims on the basis that they subjected themselves to an abnormal risk of injury. However, in Gallard v State Rail Authority of NSW  8 NSWCCR 280 it was held that a worker must have knowingly and intentionally subjected him/herself to an abnormal risk of injury, to fail in their recess claim. That decision has been relied on by judges to overcome the section 11 recess defence in some cases where workers carelessly, but not intentionally, exposed themselves to an abnormal risk of injury.
Alcohol and Drug Issues
Where employees drink alcohol at licensed establishments during lunch breaks, the risk of becoming injured in a motor or pedestrian accident or fight is arguably increased. If it is not a work function and the drinking is not induced or encouraged by management and the worker suffers an injury during the recess which was more likely to have occurred in circumstances where they were affected by alcohol, the defence that he/she subjected themselves to an abnormal risk of injury may succeed. The outcome of any case usually turns on the facts and circumstances of the individual case.
Any worker who is driving a vehicle or operating machinery or working in a laboratory or working with tools, equipment or hazardous substances or in other circumstances where alcohol is contra-indicated, should be told that they must not be under the influence of alcohol or drugs at any time while they are at work or carrying out work tasks for the employer. The employer should have a drug and alcohol policy that deals with these issues, which has been distributed and explained to all employees. In relation to other workers (for example, some office workers), where the consumption of some alcohol during a lunch break may not pose a significant risk of workplace injury or raise potential performance problems, it is a policy decision for the particular employer as to whether alcohol consumption during lunch breaks is to be banned in its drug and alcohol policy. Employers should obtain legal advice before implementing or amending their drug and alcohol policies.
Work Sponsored Social Functions
At work sponsored social functions where alcohol is provided or paid for or workers are encouraged or allowed to drink alcohol, the employer ought to consider providing cab charge vouchers or otherwise arranging for the safe transportation home of its workers at the conclusion of the event (including the work Christmas party). Workers should be told prior to the event the time at which the function will end and when their participation in it as a representative of the employer will end. The workers should also be told that at the time the function actually ends. Responsible consumption of alcohol should be encouraged prior to, and monitored during, such events. This will minimise the risk of injury from accidents and fights both at the event or in the period immediately following the event. Injuries sustained after these events and before the worker arrives home can be compensable under the journey provisions.