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McDonald’s smoke break legal case needs digesting


28 March 2019

A recent legal case involving a McDonald's worker who fell from the roof of one of the fast food retailer's restaurants during a pre-shift smoke break has generated significant attention recently.

While media commentary suggests the Industrial Court of Queensland's ruling to award compensation to the McDonald's worker may set a concerning precedent, it is important to note that the ruling only has limited application.

The court case noted that a McDonald's restaurant required the worker to attend work at 8.50 am – 10 minutes prior to her formal shift start time to ensure a smooth staff changeover with minimal customer service interruption.

There is no suggestion that there was anything wrong with this practice.

The worker decided to use this 10 minute period to climb a ladder to a roof top and smoke a cigarette. As she descended, she fell, fracturing her ankle.

In delivering its verdict, the court decided that the injury occurred during an “ordinary recess”. Under the Workers' Compensation and Rehabilitation Act 2003 (the Act) in section 34 (1), injuries sustained during a recess are injuries within the definition of the Act.

If the injury is sustained during the recess, employment does not have to be a significant contributing factor. It is also worth noting that, to come within the recess definition, the worker needs to be temporarily absent from their place of employment.

In this case, the circumstances surrounding the worker's injury entitled her to statutory compensation for two reasons:

  1. The rooftop was not her place of employment; and
  2. The employer required employees to attend the workplace a set time before their shift starts. This provides employees a “recess” between the time required to attend work and the commencement of the work period.

Normally recess claims occur during lunchtime or other breaks. However, as the court noted, the term “ordinary recess” is not defined, nor qualified in any way.

Had the worker turned up to work early of her own accord and decided to smoke a cigarette on the roof before starting her shift, the subsequent injury would not have occurred during a recess.

Further, the action would not fall within the general definition of injury as employment would not have been a significant contributing factor to the worker's injury.

If you have any queries about when your workers are covered, how this decision might apply to your business, please contact WorkCover on 1300 362 128 to discuss your individual circumstances.