In PVYW v Comcare (No 2) [2012] FCA 395 the Federal Court of Australia (Court) was asked to consider whether a worker of a Commonwealth Government Agency injured while having sex on a business trip sustained her injuries in the course of her employment.

The worker, employed in the Human Relations section of the Government Agency, was required by her employer to travel with a fellow employee to a country town in New South Wales. The worker was to observe the budgeting process and meet local staff. She stayed in a motel booked by her employer. Her co-worker stayed at a different motel.

The worker made arrangements to meet a male companion who lived in the country town. The two went to a restaurant for a meal and then went to the worker’s motel room where they had sex. The worker was injured having sex on the bed in the motel room with her male companion. A glass light fitting located above the bed was pulled from its mount, falling on the worker, causing injuries to her nose and mouth.

The matter firstly went before the Administrative Appeals Tribunal (Tribunal). Section 6(1)(c) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides an employee’s injury may be treated as having arisen out of, or in the course of, his or her employment, if it was sustained while the employee was temporarily absent from the employer’s place of work undertaking an activity associated with the employee’s employment or at the direction or request of the Commonwealth.

The Tribunal decided the worker’s sexual activity was not an ordinary incident of an overnight stay like showering, sleeping, eating or returning the place of residence. She was involved in a recreational activity which her employer had not induced, encouraged or countenanced. Her injuries were said to be unrelated to her employment and took place during her leisure time and were of a private nature.

The worker objected to the Tribunal’s finding the sexual activity was not countenanced by her employer. The Court agreed and stated the word ‘countenance’ means to ‘support or approve’ but may also mean to ‘tolerate or permit’. It said there was no evidence to make a positive finding the sexual activity was not countenanced by the employer.

The Court stated that absent serious and willful misconduct or an intentionally self-inflicted injury, an employee who is at a particular place at which he or she is induced or encouraged to be by his or her employer during an interval or interlude in an overall period or episode of work will ordinarily be in the course of employment.

It was accepted between the parties the employer did not encourage the worker to engage in sexual activity while in the motel room but the Court said this did not mean it disapproved of her doing so. There was nothing before the Tribunal to indicate whether the employer approved or disapproved of employees engaging in sexual activity during an overnight stay arranged by the employer.

The Court was otherwise satisfied there was sufficient connection between the injuries suffered by the worker and her employment because the injuries were sustained while she was in the motel room in which her employer had encouraged her to stay.

Therefore, it found the Tribunal was incorrect in finding it was necessary for the worker to show the particular activity which led to her injury was one that had been expressly or impliedly induced or encouraged by her employer. The fact the worker was engaged in sexual activity rather than some other lawful recreational activity, such as playing cards, does not lead to a different result.

The decision indicates the Courts are willing to adopt an expansive view of ‘in the course of employment’ and it is likely to include any conduct that is not unlawful or serious and willful misconduct or conduct amounting to the intentional self-infliction of injury unless there is evidence of a policy by the employer indicating the activity is disapproved of. The decision is a reminder to review and perhaps expand on misconduct policies applying to the workforce.

A copy of the Judgment is available here.