Can employees suffer an industrial injury before arriving for work?

The employer was not liable to pay damages for the injury sustained by a temp in a car accident when driving from her home to her temporary place of work.

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An accident is recognised as an industrial injury pursuant to the Workers’ Compensation Act if it is a consequence of the work or working conditions. Accidents occurring during transport to or from the place of work are, as a main rule, not covered by the Act, since such transport is regarded as taking place in the employee’s leisure time.

However, if the transport takes place in the interest of the employer or company, or if the employer or company has a significant influence on the transport, it constitutes an exception to the main rule. In this case, the question before the courts was whether the exception applied.

The case concerned a temp employed at a temp agency. She was involved in a car accident when on on-call duty and driving in her own car from her home to her temporary place of work. The temp broke her neck and suffered serious injuries in the accident.

During the proceedings, the temp particularly stressed that she had suffered an industrial injury, as the employment relationship was conditional on the employee having her own car. She therefore believed that her driving to and from the places of work took place in the employer’s interest. The temp further stressed that as a temp she had different places of work and that it was in the temp agency’s interest that its temps were at the agency’s disposal and able to show up for work at short notice. In addition, she received a mileage allowance for her driving to and from her temporary places of work.

Both the district court and the high court found that the temp had not sustained an industrial injury. The driving did not take place during working hours and the temp was not performing work subject to the employer’s instructions when the car accident happened. The driving was not otherwise based on the employer’s circumstances, but mainly on the temp’s interests. In this regard, the temp’s mileage allowance did not carry any weight.

The high court further attached significance to the fact that the temp was not obliged to drive her own car to the temporary place of work. She was free to choose other means of transportation as long as she was able to show up for work at the agreed time at short notice and within a large geographical area.

Norrbom Vinding notes

  • that the judgment maintains the main rule under existing case law that accidents occurring during transport to and from the employee’s place of work are not covered by the Workers’ Compensation Act; and
  • that this main rule will not be derogated from on the basis of the employee driving to changing places of work and receiving a mileage allowance as a result of such driving.

The content of the above is not, and should not be a substitute for legal advice.

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