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Perspective

Out of hours misconduct continues to present legal challenges

A recent decision of the Queensland Supreme Court has again demonstrated how employees’ outside of work hours conduct can be treated differently by the law depending on the jurisdiction in which the claim has been brought.

Mathew Reiman
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In Schokman v CCIG Investments Pty Ltd [2021] QSC 120 (27 May 2021), the Court rejected a worker’s negligence claim, finding a condition exacerbated by an incident where the worker’s colleague urinated into the worker’s mouth at 4am while in shared accommodation was not an injury arising out of or in the course of the worker’s employment.

The worker, who suffered from two sleeping disorders known to the employer, was employed at an island resort, and was required by the employer to live on the island and share accommodation owned by the employer.

During the urination incident, the worker was asleep when his colleague urinated into his mouth after a night of drinking. The incident caused the worker to suffer an attack related to his sleeping disorder.

The Court concluded the incident did not have the sufficient connection or nexus with the course of employment – although the incident occurred in accommodation owned by the employer, it was not sufficiently connected with the business of the employer as a provider of resort services.

Despite this, would the conduct of the worker’s colleague have justified terminating the colleague’s employment?

Terminating employment for out of hours misconduct is notoriously difficult. Tribunals and Courts have often recognised the rights of employees to engage in their private activities unencumbered by the obligations of their employment.

In this instance, the conduct engaged in constituted a serious assault on the worker, occurred in accommodation where the employees were required to be and, importantly, there was evidence to suggest the colleague’s conduct occurred because of the colleague’s frustrations with the management style of the worker.

These factors indicate an argument that the conduct, viewed objectively, was of such gravity or importance to indicate a rejection of the employment contract by the colleague. It was conduct which, in the context of the employment relationship, had serious potential to damage the employer’s interests, namely, its ability to provide a safe accommodation environment for its employees.

Lessons for employers

  1. Important not to conflate one jurisdiction with another! The rejection of a worker’s compensation claim may not necessarily have the same results in a different jurisdiction and vice versa.
  2. Employers who maintain accommodation for employees should have clear and communicated policies regarding expectations of conduct by employees in using the accommodation.
Mathew Reiman
Published:

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