PLEASE, NOT ON THE DOCTORS’ WATCH! Sex during business trips can be perilous

By Rebecca Hyde, Workplace Compliance Advisor at ClinLegal. Rebecca holds a Bachelor of Laws and Legal Practice (Hons) and a Bachelor of Behavioural Science (Psychology).

What are the odds of an employee on a work trip suffering injuries during sexual intercourse in a Practice-designated motel and suing the employer for compensation? In the following case the employee successfully sued her employer for such injuries.

The employer appealed to the High Court incurring significant costs. The question for ultimate determination was when is an employer liable to pay compensation to an employee injured after- hours on a business trip? Below we review the case of Comcare v PVYW (2013) HCA 41, which should serve as a salutary message for Practice owners. The facts The employee was on a two day out-of-town assignment for her Practice and stayed overnight in a motel booked and paid for by her employer. During sexual intercourse with an acquaintance at the motel that evening, a glass light fitting above the bed was pulled or broken from its support frame by the employee, or her acquaintance, striking the employee in the face. She sustained injuries to her nose and mouth, and suffered subsequent physiological injury.

Did the injuries occur ‘in the course of employment?’

Whilst the employee was injured during a business trip, she was on a work break at the time. What has to be proved is whether the break occurred during an overall period of work, and whether the injuries were the result of a continued connection between the employer and the employee. Previous cases indicate that employees injured while on a break are still ‘in the course of employment’, hence able to claim compensation.

Court decisions differ – employer or employee?

In the first hearing, the Tribunal found that the injuries did not have sufficient connection to the employee’s employment; her claim was rejected. The employee disagreed with this decision and successfully appealed to the Federal Court; the employer was found liable.

The employer decided to appeal to the Full Court of the Federal Court that also ruled in favour of the employee because the injuries had occurred in a motel booked and paid for by the employer, deeming that this provided the required connection between employer and employee; the employer was once again found liable.

The employer was not satisfied and appealed these decisions to the High Court. The High Court found in favour of the employer and the claim was dismissed.

The High Court’s determination

To establish the connection between injuries of employees and their employment, the High Court first determines the cause of injuries, and whether they have been induced or encouraged by employers. In this particular case, the High Court emphasised that the employer was not automatically liable because the injuries occurred in a motel booked and paid for by the employer, but rather that the injuries occurred during sexual intercourse because the glass light fitting was lifted from its support frame by the employee, or her acquaintance.

The High Court also noted that had the glass light fitting fallen onto the employee of its own accord, hence due to a defect of the premises, the employer would have been liable for compensation.

Recommendations for Employers

  • Be alert to the fine-line fact that there are only two possible questions that determine whether there is a connection between you, and any injuries sustained by your employees: 1. Is your employee injured as a result of an action induced or encouraged by you? 2. Is the injury a result of being in a particular location that was induced or encouraged by you?
  • Conduct a risk assessment prior to booking accommodation for employees.
  • Adopt a Code of Conduct Policy to specifically regulate behaviour of employees during out-of-office business trips.

To access the Code of Conduct Policy or for further information or advice, contact us at info@clinlegal.com.au or visit www.clinlegal.com.au

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