INSURANCE l Court decides whether a toilet break is considered an “ordinary recess”
July 2014
Most employers know that a worker may be entitled to compensation if they are injured while temporarily away from
their place of employment during an “ordinary recess” period like a lunch or morning tea break. But what about a toilet
break?
In the case of Simon Blackwood (Workers’ Compensation Regulator) v State of Queensland (Wide Bay Hospital and
Health Service) 2014 ICQ 017 the Industrial Court of Queensland considered whether a nurse who sustained an injury
whilst on the toilet should be eligible for compensation.
In June 2011, Ms Helen Foster sustained an injury to her neck/shoulder when turning to reach for some toilet paper in
the facilities of the Bundaberg Base Hospital. The toilet facilities were located in the nurses’ staff room and were
provided for the use of hospital staff only.
Ms Foster lodged an Application for Workers’ Compensation under section 34(1)(c) of the Workers’ Compensation &
Rehabilitation Act 2003 (the Act). The application was rejected by WorkCover Queensland. On review, the Regulator
set aside the decision by WorkCover. However, the hospital appealed to the Commission, which was upheld, bringing
the case back into the spotlight. The Regulator then appealed this decision to the Industrial Court.
The Commission had decided that, even though Ms Foster was temporarily absent from her place of employment, in
accordance with section 34(1)(c), this was not during an ordinary recess.
On appeal, the Regulator claimed the Commission had taken a restrictive approach to the interpretation of the Act and
that its interpretation was inconsistent with the beneficial character of the Act.
The Industrial Court found that “what constitutes an “ordinary recess” in section 34(1)(c) of the Act will need to be
determined in accordance with each factual situation. It seems to me that a toilet break is an “ordinary recess” for the
purposes of section 34(1)(c). It is “a break or interruption of limited duration in the continuity of a normal working day”.
Given the Court’s interpretation of “ordinary recess” in this matter, one may ask what isn’t considered an “ordinary
recess”. This ruling could extend to other actives such as “smoko” breaks or the afternoon “lolly run”.
Tony Rosenthal
Partner
Mullins Lawyers
t +61 7 3224 0351
[email protected]
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