Suppose that you were to go on secondment for a year to a different business, or a different arm of the business that you work for. The position that you were required to perform on secondment was a little different to that which you ordinarily performed prior to secondment. You get injured during your secondment, and you want to claim certain benefits that are only available to people employed in your ordinary position. Can you?
This issue was considered by the New South Wales Court of Appeal in State of New South Wales v Chapman-Davis [2016] NSWCA 237. The decision has some broader lessons for employers which should be kept in mind whenever they are seeking to change the duties performed by one of their employees.
Ms Chapman-Davis is injured at work
Ms Chapman-Davis was employed as a paramedic at the New South Wales Ambulance Service. She was injured at work while on secondment to the Health Access Coordination Unit. During her secondment, she was performing the role of a Health Advisor. A Health Advisor has different duties to those of a paramedic.
Ms Chapman-Davis makes a workers compensation claim
Ms Chapman-Davis made a workers compensation claim. Under the Workers Compensation Act 1987 (NSW), there was a provision limiting the total amount of compensation that an injured worker could claim. This provision did not apply to a claim made with respect to ‘an injury received by a police officer, paramedic or firefighter’.
The New South Wales Court of Appeal had to consider whether Ms Chapman-Davis was still a ‘paramedic’ even though she was on secondment performing a different role.
Was Ms Chapman-Davis a paramedic?
Gleeson JA held that Ms Chapman-Davis was still a ‘paramedic’ even though she was performing a different role while she was on secondment.
This was due to the fact that, under her contract of employment, Ms Chapman-Davis was designated as, or held the status of, a ‘paramedic’ at the time that she was injured. The letter sent by the New South Wales Ambulance Service confirmed that she was still to be employed as a paramedic under the relevant Award. It did not matter that the duties that Ms Chapman-Davis was performing were different from those ordinarily associated with a paramedic.
Sackville AJA agreed. He said that the exemption clause:
“does not say that the exemption only applies to a police officer, paramedic or firefighter who is performing particular duties at the time the injury occurs. Thus a person employed as a paramedic who injures herself by tripping over a chair in head office is exempt from the amendments in the same way as a paramedic injured on the “front line” as the result of an assault by an inebriated patient. If a paramedic is temporarily seconded to another position, but retains her employment classification and status as a paramedic, as a matter of ordinary English she is aptly described as a paramedic.”
Lessons for employers
Employers know that an employee’s duties can change frequently. This does not necessarily mean that the employee’s classification will change with them, although it often does.
Employers who are planning to change the duties that one of their employees will perform, or who are looking to send one of their employees on secondment, should seek advice to ensure that they understand the legal implications of doing so. A failure to do so could leave employers blind as to the extent of their obligations to the employee.
How can JFM Law help?
If you have any concerns regarding the duties your employees are performing or if you are seeking advice regarding the secondment of your employees, contact JFM Law on (02) 9199 8597 for a no obligation chat. If you would rather get in contact through email, send your question through or by email at wehelp@jfmlaw.com.au
The information contained in this post is current at the date of editing – 27 November 2023.
