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Court Win For Woman Who Fell From Maccas Roof While On A Smoko

A McDonald's worker who fell off the roof of a fast-food restaurant in Queensland after climbing up for a smoke has won her right to workers' compensation.

Mandep Sarkaria was at her work at a McDonalds restaurant south-west of Brisbane in November 2016 when the incident occurred, sparking a two year legal battle to get access to compensation.

According to official court documents, Sarkaria, who hasn't worked since the injury, arrived at work 10 minutes before her shift began at 9pm, because of an employee policy which dictated workers must arrive early.

It was during this time that Sarkaria used a three-metre ladder inside a storeroom to climb out onto the roof of the McDonalds building to smoke before her shift.

Sarkaria used the roof, an area not designated for smoking, despite a sign on the ladder warning against going there.

Image: Getty Images

It was on her climb back down the ladder that she fell, breaking her right leg in the process. 

WorkCover rejected her claim and later an appeal against the rejection was dismissed in court.

It was found that Sarkaria could not establish that she had been "temporarily absent from her place of employment" and that she was on a "ordinary recess" at the time.

But this week, the Industrial Court of Queensland overturned the dismissal and found her liable for a workers' compensation claim.

Despite being on the roof outside of her normal employee duties at the time, the court found evidence that employees were allowed on the roof every few months for cleaning duties.

Justice Glenn Martin, the President of the Industrial Court, found the Vice President erred in her earlier decision that these cleaning duties meant the roof and ladder fell within her "place of employment".

Martin said that just because Sarkaria was required to climb to the roof at specific moments, during other times the place was "restricted" and thus could not be part of her place of employment.

Martin also found that Sarkaria satisfied the conditions for "an ordinary recess" because the 10 minute buffer period before their shift commenced was a requirement from her employer.

"Although none of the employees at the restaurant would serve a customer, or cook food, or lift a mop from the time they arrived until their shift commenced they had, in my view, commenced work," Martin said in his decision.

Image: Getty Images

Shine Lawyers solicitor Ben Wilcock said it was an "unusual set of facts".

Wilcock explained to 10 daily that the case fell under an exception to the usual test for workers' compensation claims.

"By showing that she was temporarily absent during an ordinary recess, she can still claim statutory compensation," he said.

But despite the unusual circumstances Wilcock said he doesn't expect the decision will have "wide-sweeping implications".

It is such an unusual set of facts and it's clear that the decision turned upon the specific fact of this case.

Wilcock explained it was also important to be mindful that the case does not suggest McDonald's was negligent as her employer, and the decision simply paves the way for Sarkaria to make a legislative claim for workers' compensation.

"She'll be able to be paid or back-paid a percentage of her wages which she has been unable to work and also recover payment for reasonable medical and rehabilitation expenses," he told 10 daily.

"This usually continues until they are able to return to work".

Wilcock said workers' compensation laws are different in every state, but NSW laws have similar provisions in terms of temporary absences from the place of employment.

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Featured Image: Getty Images

Contact the author: vgerova@networkten.com.au