In the recent decision of Davis v Terrivic Pty Ltd [2016] NSWCC 10, the New South Wales Worker’s Compensation Commission (The Commission) found that personal injuries sustained in a motor vehicle accident following the Applicant’s resignation from her job, occurred ‘out of and in the course of her employment’.
The Applicant, Ms Adele Davis was employed as Assistant Manager at KFC Broken Hill when on 7 May 2013, she was involved in a motor vehicle accident and suffered significant injuries. The injuries (among others) included brain injury which had rendered her totally incapacitated for work for a period of more than 2 years. During this time, she made a claim for weekly compensation benefits for injury at work.
The curious fact of this case however, was that immediately prior to the motor vehicle accident – Ms Davis had resigned from her employment with KFC Broken Hill! While she had not verbally communicated her resignation to anyone, she had left a written letter at the store communicating such an intent and attached her name badge to the letter. After this, Ms Davis then left the store and began driving to Renmark some 400 kilometres away, where the Company Director Ms Leonard resided. According to Ms Davis, she had intended to speak with Ms Leonard and her husband to try and resolve workplace issues she was currently having with the Store Manager. Ms Davis contended that if and only if these issues could not be resolved – her resignation letter would take effect. It was on her way to see the Company Director that Ms Davis had injured herself.
The Respondent argued against this, stating that Ms Davis was not entitled to weekly compensation as her employment had intended to take effect immediately and that she was therefore no longer employed at the time of her accident. The Commission therefore had two tasks, to determine:
Whether Ms Davis’ employment had ceased prior to her embarking on her journey;
If not, whether by leaving the store without a Manager present (as was company policy), she took herself out of the course of her employment by reason of misconduct.
Course of Employment
The Commission found in favour of Ms Davis. They found that her resignation did not in fact take effect immediately, rather she was required to give 2 weeks notice of her resignation. The Commission found no concrete intent in her letter for her employment intending to end immediately. The Commission accepted Ms Davis’ evidence that she had intended to negotiate her employment and then either continue, or terminate 2 weeks later. They also accepted that she was on her way to negotiate with the Company Director, and the injury therefore occurred in the course of her employment.
Did Ms Davis’ Absence Amount to Gross Misconduct?
The Commission rejected the Respondent’s argument that Ms Davis acted in a matter of gross misconduct in leaving the store without a Manager. Ms Davis had left the store in the hands of an experienced worker who had received training as a Shift Manager. No evidence was put forward that this employee was incapable of handling the store in her absence. The Commission found that her actions did not amount to misconduct, let alone gross misconduct.
The Commission found that the injury occurred out of and in the course of Ms Davis’ employment and awarded her weekly compensation for the period of her injury related incapacity.