The full bench of the Federal Court has dismissed an appeal from workplace health insurer Comcare, ordering that a public servant who was injured whilst having sex during a work trip be paid compensation.
After a lengthy court battle involving three appeals, the federal court found on appeal that it was inconsequential what activity the worker was engaging in – whether it be having sex or “playing a game of cards” – the reason she was there is the first place was due to the work trip, and therefore she was in effect ‘at work’. The federal workplace health insurer, Comcare, had argued the employee’s motel room conduct had nothing to do with her job and was outside her ‘official duties' – the employer had not approved her out-of-hours liaison and therefore could not be held responsible for it.
The finding is certainly a significant one for employers, and it clarifies how the courts are likely to interpret exactly when employers remain responsible (and liable) for an employee’s safety. “If the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation even though it could not be said that her employer induced or encouraged her to engage in such an activity,” the panel of three judged wrote in the finding last week. “In the absence of any misconduct, or an intentionally self-inflicted injury, the fact that the applicant was engaged in sexual activity rather than some other lawful recreational activity while in her motel room does not lead to any different result.”
The last avenue for appeal for Comcare is to take the case to the High Court. A spokesman for the insurer told Fairfax the agency is reviewing the judgment. “The issue is a significant one. Workers need to be clear about their entitlements and employers should have an understanding of their responsibilities and how to support their staff,” the spokesperson said.