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18 December 2019
In a recent case, the courts ruled that an employer was not liable to pay damages for an injury sustained by a temp in a car accident when driving from her home to her temporary place of work.
Pursuant to the Workers' Compensation Act, an accident is recognised as an industrial injury only 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 general 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 general 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. Therefore, she 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 transport as long as she was able to show up for work at the agreed time at short notice and within a large geographical area.
The judgment maintains the general rule under existing case law that accidents occurring during transport to and from an employee's place of work are not covered by the Workers' Compensation Act. Moreover, this general rule will not be derogated from on the basis of an employee driving to changing places of work and receiving a mileage allowance as a result of such driving.
The Appeals Permission Board has granted permission to appeal the high court judgment to the Supreme Court.
For further information on this topic please contact Yvonne Frederiksen at Norrbom Vinding by telephone (+43 35 25 3940) or email (email@example.com). The Norrbom Vinding website can be accessed at norrbomvinding.com.
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