A federal public servant who was injured by a light-fitting while having sex on a work trip will now have her case heard in the High Court.
On Friday, the High Court granted Comcare special leave to appeal a Federal Court judgment which found the employee, known only as “PVYW”, was entitled to a payout from the Commonwealth Government as she sustained the injury in the course of her employment.
The full bench of the Federal Court found it did not matter whether the woman spent her evenings having sex or ”playing a game of cards”, she was still, in effect, at work.
The woman was in her late 30s and employed in the human relations section of a Commonwealth Government agency when she met up with a male friend on a work trip.
While having sex in the woman’s motel room, a glass light-fitting located above the bed was pulled from its mount and fell on the woman, causing injuries to her nose and mouth which required hospital treatment.
She suffered from depression and anxiety afterwards and was unable to work.
The full bench of the Federal Court found the woman did not have to show that her employer had induced or encouraged her to have sex and the woman’s ”lawful sexual activity” was not misconduct and she should not, therefore, be punished for it.
But the High Court has now granted Comcare special leave to appeal and will decide whether an injury that occurs to an employee “during an interval or interlude” within an overall period or episode of work is sustained within the “course of employment”.
Andrew Douglas, partner at M&K Lawyers, told SmartCompany the law as it stands imposes a heavy burden on employers.
“The legal question is if I require you to go somewhere as a part of work and organise accommodation for you, and during the period of time you are not actually working you injure yourself, unless it is gross misconduct it is in the course of employment,” he says.
“That should send a shudder down all of our spines, why shouldn’t an employee be responsible for their own action while not working.”
Douglas says the issue is how an employer protects themselves against non-work protected behaviour during a time when work is not being undertaken.
“It is a nonsense if in those circumstances an employee is injured,” he says.
“This is where the law has got to a stage where it is an aberration and it is no longer relevant to people.”
Douglas warns if the High Court finds Comcare is responsible the finding will have an impact on any events like retreats, workshops and parties that take place outside the workforce.
“It is creating enormous complexity for employers, so we have to hope the High Court resolves it so the law makes sense,” he says.