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Article source – IEUA QLD/NT Branch

A controversial court decision means teachers must make personal ‘risk assessments’ in their own interests when deciding whether to join in with student activities, writes Holding Redlich special counsel Edmund Burke.

An appeal to overturn a July 2019 Queensland Industrial Relations Commission (QIRC) decision that an injury sustained by a teacher on a school excursion did not arise out of, or in the course of, the teacher’s employment has been dismissed.

Consequently, the teacher was not covered by workers’ compensation insurance.

While a further appeal on this latest decision is being made in the Court of Appeal, until that outcome is known there remains a serious question mark over whether members should be participating in excursions, camps, trips and outdoor education.

Appeal dismissed

On 15 January 2020 the Industrial Court of Queensland ordered that the appeal be dismissed in the matter of Geraldine Glass v Worker’s Compensation Regulator [2020] ICQ 001.

On ABC Radio National’s Law Report program the decision was described by Industrial law expert and University of Sydney Emeritus Professor Ronald C McCallum AO as one that “does not make sense”.

The decision could mean that many teachers quite reasonably refuse to take the risk of participating in school camps and other traditionally legitimate bonding activities outside the classroom with students. 

Industrial Court President Martin J said in his decision that this case was one of characterisation and about whether or not the employee’s unique actions in this matter fell within the definition of injury in s 32 of the WCR Act.

Unfortunately, this is cold comfort for teachers who can expect ‘coal face’ WorkCover decision makers to apply the case as a precedent that bars teachers from cover if they participate in non-risk-assessed activities with students.

An application has now been made to progress the matter to the Court of Appeal in Queensland.

‘Swings and roundabouts’

The employee at the centre of the case, Ms Glass, was employed in a Queensland Catholic school as a teacher and was on an end-of-year school student excursion in November 2016 when she injured her shoulder while swinging on a rope at the Blue Lagoon in Vanuatu.

The trip had been offered by the school for over a decade as part of a marine studies and cultural exchange.

The Blue Lagoon tourist destination had a well-established rope swing from a platform into the water.

The students started swinging and encouraged Ms Glass to have a go.

When it was her turn, Ms Glass swung out and injured her shoulder as she held onto the rope.

QIRC case and decision

It was argued on behalf of Ms Glass, that at the time of the injury she was doing the work she was employed to do, or at the very least interacting with the students and participating in an activity that was incidental to that work.

The regulator argued that Ms Glass was “on a frolic” of her own when she participated in the activity.

The regulator argued the Blue Lagoon rope swing was not approved or authorised by Brisbane Catholic Education, formed no part of Ms Glass’ role and so her employment only ‘provided the background’ for her injury.

Finding against Ms Glass, the QIRC found she had been undertaking an activity that would not ordinarily fall within the parameters of her normal work functions and she wasn’t induced or encouraged to take part.

The QIRC said it was physically impossible for her to supervise the students whilst also swinging on  the rope.

This meant that her employment was not the real cause of her injury as she was not undertaking her functions as a teacher at the time of the injury.

Appeal to the Industrial Court

Following the decision of the QIRC, an appeal was made to the Queensland Industrial Court to overturn the decision.

Steering the decision away from being characterised as an interval case, President Martin J stated: “That is not an argument about whether the injury occurred during an interval in the traditional sense.

It is an argument that Ms Glass, during a period of work, ceased to undertake her duties. This came about, it is argued, because she engaged in a recreational activity and so deliberately put herself in a position where she could not supervise the students.”

President Martin J stated that “This is a case about characterisation and about whether or not the actions of the appellant fell within the definition of injury in s 32 of the WCR Act.”

Section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) provides that compensation is payable for an injury sustained by a worker and defines injury as arising out of, or in the course of employment if, for an injury other than a psychiatric or physiological disorder, the employment is a significant contributing factor to the injury.

Dismissing the appeal President Martin J observed: “The Commissioner correctly observed that the employment must be important or of consequence so far as the injury is concerned and that there must be some connection between the two things.

There was nothing that required Ms Glass to use the rope swing. There was no urgency arising out of her employment which led her to use the rope swing. It was something she decided to do and her employment was not a significant contributing factor to her injury.”

Measures teachers can take to protect themselves

A number of circumstances unique to the injury were singled out to distinguish it from an injury that would have entitled Ms Glass to compensation.

These were:

1. the rope swing was not an authorised or approved activity for either staff or students;
2. Ms Glass made a voluntary choice to participate in the rope swing activity;
3. the rope swing activity was recreational in nature and it was not a requirement of Ms Glass’ employment that she participate; and
4. it was physically impossible for Ms Glass to actively supervise students while also participating in the rope swing activity.

However at a practical level, a teacher concerned about whether they will be protected by workers’ compensation should:

1. Refuse to participate in any activities that have not been formally risk-assessed;
2. Not volunteer to take part in any activity;
3. Not take part in any activity they have not been expressly required to do so by their employer; and
4. Not take part in any activity which makes it difficult or impossible for you to ‘actively’ supervise students.

Activities which could put you at risk

Examples of “risk” activities include:

• Outdoor education
• Handball in the yard
• Unscheduled games and activities on camp
• Joining a game students are playing in the playground
• Sports day staff races
• Unspecified supervision while skiing on ski camp

Seek advice from our union

Until the outcome of the appeal on this latest decision is known, members set to undertake excursions, camps, trips and outdoor education should contact our union for advice regarding their participation via enquiries@ieusa.org.au or 8410 0122.