Robert Ziebarth was a service manager responsible for overseeing a fleet of trucks. He injured his lower back when he fell in his bathroom as he was trying to leave the shower (and subsequently the bathroom) to answer his employer-issued mobile phone. At the time, Ziebarth needed to be available to address any issues that arose with the trucks. He and his employer agreed he was contractually obligated to be on-call and the employer expected him to answer the phone. The call was work-related.

The appeal centred on whether Ziebarth's injury arose "out of, or in the course of, employment" and whether his employment was "a significant contributing factor to the injury". Both questions must be proven affirmatively for an injury to be compensable under Queensland workers' compensation law. The first limb (whether the injury arose out of or in the course of employment) is also required for an ACT or federal government employee to have a compensable injury (see section 5A of the Safety, Rehabilitation and Compensation Act).

The High Court examined this element comprehensively in Comcare v PVYW, the widely discussed case in which a federal public servant was injured while having sex in a motel on a work-related trip. The court found the woman did not sustain a compensable injury because her employer did not induce or encourage her to have sex. The court set out principles for determining whether an injury arises out of or within the course of employment.

The Queensland Industrial Relations Commission's Deputy President, Dan O'Connor, applied the tests set out in Comcare v PVYW by examining (a) what activity the employee was engaging in at the time of the injury, and (b) whether the employer encouraged or induced the employee to engage in that activity. In Ziebarth's case, the activity was answering a work-issued mobile phone; both he and his employer agreed he was expected and obliged to do that. That he was hopping out of the shower at the time, which (without his employer's knowledge) increased the likelihood of his injury, did not deprive his actions from being related to his obligation to answer the phone. Accordingly, the commission upheld his appeal and he was awarded compensation.

Ziebarth's case highlights the need for employers to consider carefully the work, health and safety environment of staff who work from home or "on-call". Employers often use a self-assessment process by which materials are provided so the employee can assess hazards in their home work environment. However, this process may miss hazards in the home that exist away from the employee's workstation. Additionally, an employee may miss hazards that are not obvious to a layperson or not considered during the initial assessment.

In the 2001 Administrative Appeals Tribunal decision of Hargreaves v Telstra, Telstra employee Dale Hargreaves was awarded compensation for injuries resulting from a fall down the stairs in her home. She had been taking a brief break from her work and had walked down the stairs to get some medicine to relieve a respiratory problem. In a home work environment, routine breaks from work should be expected and considered to be in the course of the employee's employment. Accordingly, employers would be well served to consider more areas of the home when assessing hazards in an employee's home working environment, and to use professionals in the assessment process. The assessment should include regular checks to accommodate any changes or novel hazards in the environment. Failing to fully consider the hazards that arise in a home work environment may result in an injury and the subsequent liability of an employer to pay compensation.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. john.wilson@bradleyallenlove.com.au