One of the most difficult questions in workers’ compensation law is whether an injury, on a work supported function, arises out of or in the course of employment.
Arises out of is easy – was the person injured undertaking work during work times.
In the course of employment is much more difficult. It contemplates an injury arising during intervals or interludes of work (work send you to a hotel for a work conference, and you suffer a tripping injury in your room because of a faulty carpet), the activity is induced or encouraged by work (we will pay for your travel and hotel) but finally the connection can be broken by the nature of the conduct of the employee. For example in Comcare v PVYW, the employee’s claim was rejected for a facial and psychological injury suffered when she pulled a lamp onto her face during sex. The High Court held that the employee did not induce or encourage her to have sex on a work trip.
Enter the latest case of Ms Dring (Dring v Telstra), who with her friend Ms McKenzie consumed close to two bottles of wine and cocktails over 8 hours and slipped on a wet floor (2.30am) injuring herself, only a few hours before she was due to listen at an Information Technology Training Session. Snaden J held her activity, was not work related and not encouraged by her employee and therefore was not connected to work for the purposes of Workers’ Compensation law.
Had she slipped after two drinks immediately after the last session it probably would have been an acceptable claim.
Lessons
- Make clear what your are requiring of employees at a work-related retreat or external function
- Be clear what is not work – this should be in the code of conduct, a policy and a direct communication giving lawful and reasonable directions about expected behaviours and disciplinary outcomes for those who breach
