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The Administrative Appeals Tribunal (AAT) has found in Sutherland and Comcare (Compensation) [2017] AATA 2596 that evidence of an employer-employee relationship before a formalised employment contract has been executed is sufficient for the employer to be liable for workers' compensation—a decision that may impact future claims in Western Australia.

The facts

A worker was employed at the University of Canberra as a lecturer and tutor from 2012. Her employment was subject to a sessional contract for the period of 6 August 2012 to 27 February 2013. The worker was also concurrently visiting the employer's premises throughout 2012 and 2013 to complete a PhD.

In January 2013, the worker fell down a set of steps after buying lunch from the employer's facility. Comcare initially accepted liability for the compensation claim but subsequently revoked this on the basis the worker's injuries weren't compensable as they had not been sustained during the course of her employment, but when she was at the premises for a non-work related matter concerning her PhD. Comcare also argued she had completed all of her duties under her sessional contract and so couldn't have been attending the premises to undertake employment-related duties.

The worker argued she was in fact undertaking work-related duties when she was injured, claiming she had attended the premises for a meeting regarding a lecture she was to present in the upcoming semester and to discuss the non-payment of fees for a lecture she held in 2012.

The worker also argued that she came in to discuss presenting some lectures in the first semester of 2013 but that a formalised contract for this work hadn't yet been finalised between her and the employer. Accordingly, she had suffered her injury at the employer's place of business to discuss work she had agreed to for the upcoming semester, but which was not the subject of a formalised contract of employment.

The AAT's decision

The AAT found that the absence of a formalised contract did not mean there was no employment relationship at the time of the incident, remarking that "courts in Australia and overseas have routinely held that preliminary negotiations via email, text or other communications can constitute a binding contract, despite formal documents not being executed".

The worker was doing precisely what her employer had requested and therefore her injuries occurred in the course of her employment, at her place of work, during an ordinary recess. Consequently, her injuries were compensable.

Future compensation claims in Western Australia

Compensation legislation across Australian states has varying definitions of "course of employment" and "compensable injury", which may change the extent of this decision's impact on state law.  In Western Australia, a compensable injury is defined as one that is suffered "arising out of or in the course of employment, or whilst the worker is acting under the employer's instructions". Accordingly, in similar circumstances, if it is found a worker attended an employer's premises under the employer's instructions to discuss upcoming work, an arbitrator in Western Australia may come to the same decision.

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