Is my employer liable for my medical costs? I mean, come on, I was walking into work when it happened!
Back when I was younger, so much younger than today, I used to skateboard to and from work. As far as a method for the daily commute goes, there are worse ways to travel. It’s relatively smooth, fast, and free, with the biggest challenge I faced being to steer around old people and pigeons. I was usually successful.
However, skateboarding is not exactly a safe means of travel, especially for someone as accident prone as I am. I mean, just today I cut my finger pretty badly while closing our front door, so you can only guess what damage I did to myself on a skateboard.
It was not a huge surprise to me when my employer at the time, who I will call the Commonwealth Bank of Australia because I am not inventive enough to come up with a good pseudonym, politely asked me not to ride my board to and from work. They were worried they might be liable for any injuries I suffered when (and it was definitely a when) I badly hurt myself, or someone else, skating into work or back home at the end of the day.
Their request for me to stop riding my board to and from the office was based on good, solid legal advice. If, God forbid, you are hurt travelling to and from work, you are entitled to make what is known as a ‘journey claim’ against your employer, seeking financial compensation for any loss you suffer because of your injuries. This can include medical costs, physiotherapist fees, and compensation for loss of income.
Actually, correction: you will be able to make a journey claim if you work in Queensland, the Northern Territory, New South Wales, or the Australian Capital Territory. And even in these places, it is very difficult to make a successful journey claim. For example, in New South Wales, you need to be able to show that there is a real and clear connection between the injury you suffered and your working day. Simply being injured on the way into work, or from work to home, might not be enough in and of itself. I know, stupid law and its rules.
The other states and territories do not recognise journey claims, so you travel to and from work at your own risk in those places. That means, for example, that if you were walking to work in, say, Melbourne, and were hit by a weird looking young-ish man with red hair, wearing an ill-fitting suit, and riding a skateboard, then you would not be able to make a claim against your employer for your medical expenses nor for any loss of income while you recover from any injuries. You’re meant to take out your own personal income protection insurance for this sort of stuff, apparently. Because, you know, it is so cheap and easy to do.
Where things start to get more interesting, or less boring, in this area is how the rise in working from home has led to changes in the way these laws are applied (or not applied). Employers are madly trying to figure out if, by allowing their employees to work remotely, they can still be liable for any travel-related injury their employee suffers while working remotely. And on the flipside, employees need to consider whether, by choosing to work remotely, they are giving up or limiting their rights to make a travel-related injury claim against their employer. Would walking from your home office to your kitchen to make a coffee during the workday be a work-related trip? How about from your home office to the café up the road for a quick bite to eat? Is that a work-related trip?
There is no clear answer to these issues, as yet, but we are starting to get some guidance, and none of it looks particularly promising for employees working remotely.
Let’s take a recent New South Wales example. A presenter at the Australian Broadcasting Commission (or the ABC, as I understand it is also known) was working from home one fine spring day. She decided to go for a jog outside, around morning tea time. A few minutes into her jog she fell and broke her hip. She lodged a claim for compensation with the ABC, arguing that as she regularly took a mid-morning run on workdays, whether she was in the office or working from home, the ABC’s insurance policy should cover her injury as it amounted to a work-jog.
The ABC challenged her claim, arguing that the jog had absolutely nothing to do with work, but rather was for the presenter’s own health and fitness. The ABC’s position was that the second she stopped working, laced up her running shoes, and headed out her front door, the presenter removed herself from the workplace and was no longer doing something directly connected to her employment.
The judge agreed with the ABC. Cutting through pages of legal arguments and reasoning, the ABC won because it could show that the presenter’s jog, and the injury she suffered along the way, was completely disconnected from her normal work day.
What does this mean for those who work remotely? Well, at least until the law in this area matures a bit more, you need to keep in mind that the law will separate the working part of your day from the non-working part, and breaking the link between work and play can be triggered by something as simple as you changing into a pair of running shoes during normal office hours.