Mcdonald’s worker smoking before shift successfully claims for leg injury

Barry.Nilsson. Special Counsel Jim Tealby discusses the successful claim of a McDonald’s worker who injured her leg while using a ladder to access the building’s roof in order to smoke. The employer required its workers to arrive 10 minutes before their shift to ensure continuity of work. The claimant sustained an injury in the 10 minute period before starting work. Jim asks: “When is a worker at work?” 

Jim Tealby

In Issue

When is a worker at their ‘place of employment’ and when are they on an ‘ordinary recess’. If they are on an ordinary recess, employment need not be a contributing factor for an injury to be accepted for workers’ compensation.

The Background

The claimant worked at McDonald’s Richlands, arriving 10 minutes before her shift was to commence, as required by her employer. In that 10 minute period she climbed a ladder to the roof to smoke a cigarette. She sustained an injury to her right leg when climbing down the ladder.

The Workers’ Compensation and Rehabilitation Act 2003 relevantly states in section 34(1)(c);

‘34  Injury while at or after worker attends place of employment

(1) An injury to a worker is taken to arise out of, or in the course of, the worker’s, employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker’s employment –

(c) while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themselves to an abnormal risk of injury during the recess.

(2) For subsection (1)(c), employment need not be a contributing factor to the injury.’

WorkCover Queensland rejected her compensation claim.

The Decision in the Queensland Industrial Relations Commission

The claimant appealed the rejection in the QIRC. The appeal was dismissed.

The Vice President found that the rooftop and the ladder were within the appellant’s place of employment and that the incident did not occur during an ordinary recess.

The Decision on Appeal to the Industrial Court of Queensland

The Industrial Court disagreed with the Vice President on both issues. The Court found:

‘place of employment’ – The Vice President erred by concluding that the rooftop and the ladder were within the appellant’s ‘place of employment’.


‘ordinary recess’ – ‘…the period of time during which an employee was required to attend at the place of employment before a shift commenced should properly be regarded as an ‘ordinary recess’ for the purposes of s34 of the Act.’

The claim therefore fell within s34(1)(c) and the claim was allowed.

Implications for employers

The ‘place of employment’ is not necessarily everything within the employer’s premises. It will vary depending on the work being performed by the worker. See for example Teys Australia Food Solutions Pty Ltd v Q-COMP & Polichronis [2013] QIRC 8 where a claimant was sexually assaulted in the employer’s car park, after already having passed through security gates on her way to work. In that case, the claim was upheld on the basis that it was a journey claim.

Similarly, ‘ordinary recess’ may not necessarily be determined by a break occurring between when work officially starts and stops.

Read the case in full: Mandep Sarkaria v Workers’ Compensation Regulator [2019] ICQ 001

Jim Tealby
 is Special Counsel in the Barry.Nilsson. Insurance and Health team and is based in the Brisbane office. Since 1994 Jim has specialised in the area of statutory personal injuries compensation including workers’ compensation, public liability and CTP. Over the years his practice has evolved and for the past 11 years his focus has been solely on workers’ compensation claims. Jim’s clients include insurers, employers and self-insurers. He works closely with his clients to guide them through the compensation process. Jim has been listed in the Doyle’s Guide as a Recommended Workers’ Compensation Lawyer (QLD) since 2016. In 2015 he was recognised as a Recommended CTP Lawyer (QLD). Jim holds a Masters of Laws, Bachelor of Laws and Bachelor of Business (Communication). He is a nationally accredited mediator and a member of the International Academy of Collaborative Professionals. Contact Jim at or connect via LinkedIn

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