A recent decision of the Court of Appeal has brought to light an aspect of work accidents that is not commonly understood by those injured – determining who is responsible when a worker gets injured, not at their employer’s place of business, but at another location.
In the case, Victorian YMCA Community Programming Pty Ltd v Nillumbik Shire Council and Victorian WorkCover Authority (VWA), the injured worker was a swimming teacher employed by Victorian YMCA Community and sent to work at a swimming centre operated by the Nillumbik Shire Council. She was injured when she slipped and fell at the centre.
Two separate trials were run. The first was by the worker against her employer and the Shire, because the centre was slippery and improperly constructed. She won her claim against both, because of areas of law dealing with responsibility for the condition of the centre.
The VWA followed with its own claim against the Council in separate proceedings. It sought to recover all payments it had made to the worker under its legislative obligations to pay medical expenses, income benefits and a lump sum for a permanent injury.
In this case, two entities were both being held responsible for the condition of the centre, even though one was only the employer of the plaintiff and not the one that owned and operated the centre. This reason that both could be found responsible is that the employer cannot let go of its duty to provide a safe work area to its employee, simply by sending the employee to work at another location.
The law requires the employer to ensure the work site is safe, by its own independent assessment and ongoing inspections, and to take whatever steps are needed to address any dangers at the other location.
This situation is very common. It will become more common as more people are employed through companies that send them to work at other locations, or through labour hire companies that operate solely by being the go-between that finds and hires a person to work at another location.
In such situations, it is very important that anyone injured ensures they report any problems, not only to the place where they are working but also to their own employer. This step seems very strange to many workers, as they cannot see how their employer can do anything about the work environment at another location.
Unless each and every worker employed in this situation is aware of this ongoing responsibility held by the employer, the employer may not be properly advised of the need to address work safety issues.
If unfortunately an accident does occur, then the worker needs to ensure that he or she records whatever evidence can be obtained at that time, for example by taking photos or videos of the work conditions that caused the injury.
This advice is critical, as often the work environment will not stay the same or the worker may not be able to get access to the work environment again.