Just in case you hadn’t already heard it all as an employer, this article from ‘Human Capital Editor’ will reinforce to you the ever widening list of things that the employer can be held accountable for by the Courts.

Deafening cries of ‘where is common sense’ seem to be increasingly more muted as the pendulum continues its apparent swing to limit personal responsibility across a swathe of matters.

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.

The woman, whose name has been suppressed, worked for a federal government agency and was sent on a work trip to an office in regional NSW in November 2007. The employer arranged and paid for her accommodation, and the employee arranged to meet with a male friend after work. Later the pair returned to her room, and during sex a glass light fitting came loose from above the bed and injured the woman’s face. The glass injured her nose and mouth and she became depressed and anxious to the point she could not work.

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.

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