By Stuart Eustice, Partner, Holly White, Associate, and Lidia Martinez Chavez, Law Graduate

Factual Background

The plaintiff, Mr Mason (Worker), was employed by the defendant, R & R McClure Excavations (Employer). He sought compensation under Workplace Injury Rehabilitation Compensation Act 2013 (Vic) (The Act) for injuries suffered when assaulted by a co-worker on the evening of 20 December 2019 outside a pub in Castlemaine (the incident). The incident followed an optional end of year barbeque lunch held at the Employer’s premises (although during the barbeque, the Employer handed out end of year bonuses of cash to staff).

The Worker relied on the principles in Hatzimanolis v ANI Corporation Ltd (Hatzimanolis)[1] to support his submission that it is the inducement or encouragement by an employer which creates an association or connection with the employee’s employment. He submitted that he was assaulted whilst doing the very activity that he was induced and encouraged to do by the Employer, to socialise and drink alcohol amongst co-workers to mark the end of the working year. The Worker submitted that the location of the assault was irrelevant as there was a continuation of the activity.

The Employer argued that the assault occurred in circumstances that had no relationship or connection to employment given that the Employer was not involved in any aspect of events after the barbeque.

Legal Issue

Section 39(1) of the Act provides that if there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation in accordance with the Act.

Decision

The Court found that the Worker had failed to prove that he was injured in the course of or arising out of employment. It held that employees were expressly or impliedly encouraged and induced to attend the onsite barbeque by reason of the following circumstances:

1. The workday ending at 12:20pm following by the provision of free barbeque lunch and alcohol;
2. Staff not needing to resume work that afternoon; and
3. The handing out of cash bonuses during the barbeque.

The Court held the there was no evidence that suggested the Employer was at the pub in a management capacity. The Worker and a number of other employees had decided to meet at the pub following the end of year barbeque. This decision was done so in the absence of express or implied encouragement by the Employer, and in the absence of any implied inducement to do so such as by way of provision of funds for drinks or meals.

[1] (1992) 173 CLR 473.