Buckett v Department of Health and Ageing [2014] SAWCT 51

1. While the respondent does not challenge the applicant's evidence, it adopts a different position regarding application of the recall provisions of the Enterprise Agreement to the facts, and ultimately asserts the applicant was not performing a duty or duties of employment at the time of the accident.
2. In reaching a fresh determination of the claim I have accepted the applicant's unchallenged evidence. As a result I make the following findings of fact.
3. The applicant was a qualified medical practitioner working fulltime in the FMC neurosurgical ward. He would regularly participate in on call rosters on weekends or weekday nights. All on call duties for the neurosurgical ward of FMC at Bedford Park, also included on call duties at the neurosurgical ward of WCH in North Adelaide. All on calls were remote calls, meaning that when so rostered the applicant needed to be ready to deal with phone calls about patients and to attend FMC or WCH within 30 minutes of being called by either hospital. The applicant would carry a mobile phone and pager so he could be quickly contacted.
4. While being rostered on call over a weekday night the applicant would be paid an allowance of approximately $34. If recalled he was entitled to additional wages for time occupied as prescribed by the EA.
5. As the rostered on call doctor, the applicant was expected to re-examine and reassess any new patient he had seen overnight, before the end of his on call period the following morning. Fulfilment of this expectation was the established practice. The applicant did not need a specific instruction to do so because he correctly understood it was an expectation of the respondent that he would carry out that duty. He was accordingly authorised by the expectation to carry out this recall duty. The obligation was to attend at either FMC or WCH in the morning depending on where he had examined the patient overnight, and before the start of his normal day shift at FMC.
6. At the completion of the applicant's normal shift on 5 June he travelled to his home at Seacliff. At about 7.30pm that night he received a call from FMC regarding Mr A, a patient then being admitted to the neurosurgical ward. In response the applicant travelled to the hospital from his home to examine and assess the patient. Mr A had signs of bleeding on the brain and was deteriorating, and so required close monitoring. There was a possibility he may need surgery on 6 June. The applicant returned home at about 11.00pm.
7. When the applicant ceased his normal shift at about 5.30pm on 5 June he did not then know that he would have to perform any recall duties at FMC. The need to attend between 8.00pm and 11.00pm, and before his normal shift the following morning, was solely due to Mr A being admitted after the applicant left work.
8. I accept the applicant's following explanation of his intention in attending work earlier than normal on the morning of 6 June:

"Well, my intention with, for instance, the patient that I saw the night before, [Mr A], he had a significant head injury and had deteriorated quite suddenly the day before [he] presented to hospital. So in his situation I needed to neurologically assess him again and make a call whether he needed to go to theatre by talking with my bosses and book that all in before I started work. So my intention was to see him at about quarter past 7, half past 7, to make my assessment which would take me about 15 minutes."[2]

1. The applicant's intended and expected duties with respect to Mr A were not part of the normal handover process that occurred as part of his normal duties each morning. Handover commenced between 7.45 and 7.50 each morning and involved the applicant updating colleagues regarding the conditions of the ward's patients.
2. The applicant usually commenced work at about 7.30am by updating himself regarding patients' conditions in preparation for handover.
3. On 6 June he left home earlier than normal, for the sole purpose of carrying out his obligations regarding Mr A.
4. The applicant's time sheets did not accurately record all the hours of work he was required to perform, due to internal hospital pressure against accurate time recording.
5. The EA makes the following provisions for recall.

"63.1 A MPG employee (other than a Medical Practitioner or Senior Registrar on 'Proximate Call') who is recalled to duty on any day other than a public holiday (refer 67.2 or 67.3 as appropriate) or a Sunday (refer 63.2) and such recall is authorised, in addition to payment made in accordance with clause 62.11 or 62.12, will be paid for time worked outside hours of rostered duty at the rate of an additional 50% of the applicable Hourly Rate for the first 3 hours, and an additional 100% of the applicable Hourly Rate thereafter. Pro rata for part of an hour based on 15 minute segments.

63.2 A MPG employee (other an a Medical Practitioner or Senior Registrar on 'Proximate Call) who is recalled to duty on a Sunday and such recall is authorised, in addition to the payment made in accordance with clause 62.11 or 62.12, will be paid for time worked outside of rostered duty at the rate of an additional 100% of the applicable Hourly Rate. Pro rata of an hour based on 15 minute segments.

63.3.1 Where the period of time worked is less than 3 hours, payment will be made for 3 hours; and

63.3.2 Where the MPG employee is recalled to duty within 3 hours of a previous recall the MPG employee is not entitled to any additional payment for the time worked within a period of 3 hours from the time of commencement of the previous recall or recalls.

63.4 Each recall stands alone for the calculation of recall payments in 63.1 and 63.2 of this Agreement.

63.5 'Recalled to duty' does not refer to duty undertaken immediately following rostered work or overtime or immediately prior to rostered work unless in the case of work required immediately prior to rostered work, no notification of such requirement was given to the MPG employee prior to the completion of the MPG employee's rostered work on the previous day. Return to work for handover purposes, at the end of a rostered on call period where no period of rostered duty immediately follows, will be deemed not to be recalled to duty for the purposes of recall payments but an additional period of rostered work if the MPG employee knows of the requirement to return to work prior to completion of normal rostered duty on the previous day or shift.

63.6 Commencement of a recall will be deemed to be the time from which the MPG employee commences travelling to the health unit site and ends when the MPG employee returns to their place of residence."

1. As the applicant relies on s 30(5)(a) he has the onus of proving that his early morning journey on 6 June was undertaken in the course of carrying out duties of his employment.
2. The concept of duties of employment is narrower than the concept of the course of employment.
3. If the applicant was doing no more than travelling, in unpaid time, to FMC in readiness to commence his normal shift, the injury could not be compensable under s 30(5).
4. There is no need for a duty of employment to be the sole or main purpose of the journey. The fact he intended to commence his normal day shift duties after he completed the recall work is not decisive. In any event, his sole reason for travelling at the time he did was to discharge his recall duties.
5. In applying s 30(5)(a) I have followed the approach explained by Doyle CJ in TransAdelaide v Karanicos[3]:

"[I]t seems to me that the focus of the expression "duties of employment" as a matter of ordinary language is a reference to the carrying out of tasks under a contract of employment or the performance of an activity which is related to that which the worker was employed to do. This is by no means a precise test, and has to be applied in a commonsense and practical manner. But to my mind the ordinary meaning of the language suggests that it requires an affirmative answer to the question of whether one would say that in undertaking the journey the worker was performing the worker's job, complying with an instruction from the employer given by the employer in the exercise of its control as employer, or doing something reasonably incidental to one of those things. It is also necessary to view the journey in context. By that I mean that one should not look at the journey in isolation but should consider what preceded it and what was going to follow it. Sometimes the link between the journey and the employment would only emerge when the journey was seen in context."

1. The provision has also been explained by the Full Supreme Court in Wheeler v South Australia:[4]

"Thus, the concept of carrying out duties of employment has at its heart the doing of something which workers may be required to do, either because it is the activity for which they are employed, or because it is within the power of control of an employer to direct that it be done. In addition, a journey which is reasonably incidental to one or other of these circumstances may amount to the carrying out of a duty of employment."

1. The test is to be applied in a liberal and practical manner.[5]
2. The applicant contends he was performing a duty of employment by journeying to FMC as part of his recall duties. He relies on cl 63.6 of the EA which deems the recall to commence from the time he left his home to travel to FMC; and on cl 63.1 which entitles him to payment for time spent recalled to duty. Additionally, he contends payment of the on call allowance supports his claim.
3. The respondent accepts that if the applicant had sustained injury while travelling to or from FMC for the earlier recall to duty between about 8.00pm and 11.00pm the night before, then the injuries would be compensable based on application of the EA provisions to those circumstances.
4. However the respondent contends the applicant's second journey to FMC, on which he was injured, was for the purpose of an unauthorised or voluntary early start to his normal day shift which included checking on Mr A, but none of this was a recall duty.
5. The respondent submitted that the circumstances and outcome of the case of the State of South Australia v Brophy[6] were analogous and should be decisive of the present dispute. The relevant facts were that Brophy was riding a police motorbike home after completion of work. His private use of the motorbike was a concession granted to him. He was not then performing any duty of employment and was not being paid. He was in uniform and was subject to being recalled to duty if the need arose. Based on these circumstances his claim was rejected as the journey was not undertaken in the course of carrying out any duty of employment.
6. In my opinion the relevant facts of the present case are so substantially different that Brophy is properly distinguishable. Here the applicant was paid an allowance for being rostered on call, by holding himself available for duty. At the moment of injury he was travelling to attend work for the purpose of performing more recall work tasks that arose solely as a result of him being recalled to duty earlier in the same on call period. The only reason he was travelling at that particular time was to perform recall duties. He was also entitled to be paid wages for the whole time spent on the journey, as the recall was deemed by the EA to commence at the start of that journey.
7. In distinguishing Brophy I am unable to accept the respondent's unrealistic characterisation of the applicant's circumstances. The respondent's submission is also inconsistent with its appropriate concession that the applicant was expected by his employer to perform the duties described by him with respect to the new patient Mr A, prior to the start of his normal day shift duties. Specifically, I reject the respondent's submission that these duties were for a private purpose, or were just another thing for the applicant to do as part of his normal duties when he got to work, or that he was voluntarily checking on a patient before his normal work day commenced.
8. I also reject the respondent's submission that the applicant was not performing a recall duty because he had not been given a specific direction to attend and re-examine Mr A. No specific direction was required as the applicant correctly understood the respondent's expectation that he would attend to perform this recall duty. To require a specific direction would be to demand an unnecessary and entirely pointless administrative direction, at a time when the applicant was the senior doctor on duty. Nor did the respondent identify any process that actually existed for this purpose. This submission is also inconsistent with the respondent's concession that the applicant would have had a compelling basis for submitting an overtime claim for the time spent reexamining Mr A.
9. The respondent submitted that because of the applicant's past practise of not claiming wages for the time spent travelling for his second recall journey in similar circumstances, and because he did not claim it after this accident, he therefore had no entitlement to payment for the journey on this occasion. In my opinion the applicant's practice, under a climate of pressure against claiming for all hours spent working, cannot negate his legal entitlement to pay for the journey.
10. Next the respondent submitted that in the event there was a finding the applicant was entitled to payment for the time spent travelling to FMC on the morning of the accident, that would not be relevant absent an additional requirement that he was required to proceed with all reasonable expedition by the nearest available route. In this regard it relied upon a one page judgment of Maugham LJ in Blee v London and Northeastern Railway Company[7]. In that case a railway worker Mr Blee, was called out of normal hours to journey to a distant railway siding where there had been a derailment. The emergency nature of the call out accounted for the requirement that Mr Blee should proceed directly and expeditiously from his home to the site of the emergency. He was paid while doing so.
11. While it is the fact that in the present case the applicant did travel by the most direct available route from his home to the FMC on the morning of 6 June, there was no need to rush as the reason for his recall to duty was not an emergency. The need to travel expeditiously and directly cannot be elevated to a principle in this regard, as it was a feature peculiar to the facts of Mr Blee's circumstances.
12. The leading judgment of Atkin LJ in Blee is sufficient answer to the respondent's submissions. His Honour said:

"This decision has no general application to cases where workmen are employed to work at hours which differ from their normal hours of labour, though they are discontinuous. Any such case must be decided on its own facts."[8]

1. The respondent next referred to another UK decision of Smith v Stages[9]. While that case was concerned with the broader question of the course of employment, it demonstrates that the fact of payment for travel time is not itself decisive. The case also illustrates the distinction between payment of wages and the payment of an allowance. The former indicates a duty to travel whereas the later indicates a notion of reimbursement of expenses or recognition of inconvenience. The respondent emphasised the caution expressed by Lowry LJ not to "confuse the duty to turn up for one's work with the concept of already being "on duty" while travelling to it".[10]
2. Next the respondent sought to place some reliance on the SA Full Court decision of Nogare v Mosaic Flooring Co Ltd[11]. In that case a worker's claim was ultimately rejected, by majority, because the journey from Adelaide to Mt Gambier that Mr Nogare undertook was found to be a journey simply to be ready for work. The critical facts were that Mr Nogare was not paid for the journey, and only in Mt Gambier was his contract of service due to commence on the day after his planned arrival, by way of "hiring by the hour"[12]. In my opinion this case is of no relevance to the applicant's different circumstances.
3. Finally the respondent sought to characterise the recall duties with respect to Mr A as being no more than a return to work for handover purposes. I am unable to accept this submission because it is directly inconsistent with the facts. The applicant's need to travel to FMC early for the purpose of examining and assessing Mr A was not a part of his normal duties, as were handover duties. But for examining Mr A the night before, there was no reason for the journey at that particular time.
4. The applicant submitted that his home was a place of his employment while he was rostered on call. Therefore the journey he undertook on 6 June was a journey between two places of employment. The applicant submitted that this was an additional consideration that favoured the making of a finding consistent with s 30(5)(a). In my opinion this submission is incorrect. While I accept the home was fleetingly and notionally a place of employment at the moment the applicant commenced his journey early on 6 June, this is not a material consideration.
5. Having regard to the above findings and considerations I conclude that the applicant had commenced his recall to duty when he started the journey, he was entitled to payment for time spent on the journey, and he was required to make the journey as a recall duty. I conclude the journey was undertaken in the course of the applicant carrying out a duty of his employment. It follows that the injuries sustained by the applicant are compensable.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] Department of Health Salaried Medical Officers Enterprise Agreement 2008

[3] Unreported Supreme Court of SA S5536, 3 April 1996 at [23]

[4] [2012] SASCFC 111 at [55]

[5] TransAdelaide v Karanikos at [22]

[6] (1997) 68 SASR 97

[7] [1938] AC 126 at p 133

[9] [1989] AC 928

[11] (1965) SASR 120