Athena Koelmeyer outlines two recent cases that have underscored the grey area of whether an employer should attempt to intervene and give directions to employees about what they can and cannot do in their “private time”, whilst engaged in work-related travel.
Travel and work-related stays away from home are certainly nothing new. Of course, whilst away, in addition to working, employees will still have “private time”. While none of this has traditionally been controversial, as the lines between work time and “private time” become increasingly blurred, employers must ask themselves how they will manage the difficult task of determining when their responsibility and obligations to their employees start and end.
The recent news story concerning the alleged gang rape of a New Zealand woman who met a man through Tinder while in Sydney on a work trip should cause everyone to pause and re-think.
Work/personal life blurred: Two recent cases
We all now know that in the High Court of Australia’s decision in Comcare v PVYW  HCA 41, a Government employee’s injuries to her face and subsequent psychological injuries were found not to be “in the course of” her employment. In this case, the employee was required to visit Nowra, NSW for work. Her employer had booked and paid for her motel accommodation. Whilst in Nowra, the employee met a local man who she took to her motel room. The employee and the man engaged in sexual intercourse, during which the light fitting fell from above the bed onto the employee’s face which resulted in injuries to her nose and mouth. The High Court clearly stated that had it been circumstances where the light fitting was insecurely fastened and had simply fallen on the employee, the employer would have been held liable for her injuries because the employer had put the employee in a position where the injury occurred.
One of the key questions to be answered by the High Court was whether the injury suffered by the employee was due to an activity in which she was induced or encouraged to be engaged in by her employer. The High Court held that the employer had not encouraged or induced the employee to have sex while staying at the motel and therefore the employer could not be held liable.
As mentioned above, in the last week, a 28 year old New Zealand woman visited Sydney for business and met up with a man at a Kings Cross restaurant, who she first came into contact with via a dating app, Tinder. The date then progressed to a bar in Martin Place where the pair met up with the man’s friends. Later that night the woman alleged she felt dizzy, numb, lost her bearings and was sexually assaulted. Luckily, the woman was able to escape and told her work colleagues, who subsequently alerted the police. The woman has returned to New Zealand and the allegations made have now been withdrawn.
The impact for employers
These situations raise a discussion point for employers, namely when to attempt to intervene and give directions to employees about what they can and cannot do in their “private time”, whilst engaged in work-related travel.
In particular, the question as to whether employers should be directing employees to not engage in “risky” behaviour whilst engaged in business travel arises. Such directions could assist in cases such as PVYW as it would make it clear what activities the employer did not encourage employees to undertake.
While employers cannot be expected to produce a policy or procedure for every aspect of life, regrettably, maybe it is time to consider “out of hours” conduct policies applicable especially during work related travel when employers could potentially be liable for injuries suffered. Such policies could direct employees not to engage in activities that would be considered “risky”, such as blind dating, intoxication, taking illegal drugs and wandering around at night alone.
Privacy advocates will certainly claim such direction from employers infringes on an employee’s right to enjoy their private time, but the liability issues associated with work-related travel seem to be steering employers to take some action rather than leaving employees to their own devices.
About the author
Athena Koelmeyer is Managing Director, Workplace Law
Tel: +61 (0)2 9256 7500