Infamous Comcare sex case ends: High Court rules against compensation for worker sex injury
Thursday, October 31, 2013/
The four year legal saga between Comcare and a Canberra public servant who sustained a sex injury during a work trip drew to a close on Wednesday when the High Court ruled the employee wouldn’t be compensated.
The women, whose name has been suppressed, suffered facial injuries when a light fitting above her head ripped loose during “vigorous” sexual activities which took place in a motel room while she was on a work trip.
The decision, considered a win for employers in both the public and private sector, was labelled “common sense” by Employment Minister Eric Abetz in a statement.
“Today’s decision by the High Court to allow Comcare’s appeal in the infamous ‘sex case’ is welcome,” Abetz said.
“This decision protects the currency of work place safety which was in serious danger of being trivialised by this claim. This decision also means the definition of ‘work-related injury’ is more clearly defined.”
The incident in question took place in 2007 while the woman in her 30s was a civil servant working in the human relations section of the Commonwealth government.
The light fitting which fell onto her face injured her nose and mouth causing the worker to be hospitalised. She later suffered depression and was unable to continue working for the government.
Comcare had initially approved her workers’ compensation claim, but later rejected it.
Prior to the High Court decision, the Administrative Appeals Tribunal had found the government and Comcare were not liable for her injuries, but the Federal Court had later found the tribunal had erred and ruled the women should be compensated.
The Federal Court had decided that because the woman was sent on the work trip and the motel was chosen by her employer, the government was liable for everything that happened to her while on the trip, provided she was not engaging in any misconduct.
At the time Federal Court Judge John Nicholas rejected the notion that sex had to be condoned by the government if she was to receive compensation.
“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 her to engage in such activity,” Nicholas said at the time.
However upon appeal The High Court took the same view as the tribunal and held that the employer needed to have encouraged or induced the activity for them to be liable.
The court ruled four to two in favour of Comcare, once again showing the divisive nature of this case.
M+K Lawyers partner Andrew Douglas previously told SmartCompany the law 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 that period of time you are not actually working and you injure yourself, unless it is gross misconduct it is in the course of employment,” he said.
“It is creating enormous complexity for employers, so we have to hope the High Court resolves it so the law makes sense.”
For now at least the law is a little clearer, with what constitutes a ‘work-related injury’ more clearly defined.
Douglas says a travel policy can set out what is included in the definition of work.
“The job of human resources is to show you can demand certain behaviours outside of work and you just need to carefully define what is work in terms of workers‘ compensation claims,” he said.
Abetz says workplaces need to form a ‘mutual obligation’.
“It’s important in Australian workplaces that we have a form of ‘mutual obligation’ where employees and employers both work together and are prepared to accept personal responsibility,” he says.
“Instances such as this where an employee seeks to stretch the boundaries of entitlements are of great concern and the High Court’s intervention is welcome.”
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