Lights out for appeal over sex injury on work trip

A federal public servant injured by a light fitting while having sex on a work trip will receive a payout from the Commonwealth Government after the Full Court of the Federal Court ruled on appeal she sustained the injury in the course of her employment.

The Full 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, referred to as “PVYW” in the case, was in her late 30s and employed in the human relations section of a Commonwealth Government agency when the injuries occurred. She has waged a five-year legal battle since then.

The woman was on a work trip in regional New South Wales where she met up with a male friend and they went to a restaurant for dinner than returned to the woman’s motel to have sex.

While they were having sex, 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, rendering her unable to work.

The case first went before the Administrative Appeals Tribunal, which found the woman’s injury occurred during an “interval or interlude” consisting of “the evening of the two days the applicant was away for work”.

It found the woman’s employer had expressly induced or encouraged her to spend the two days at the town, and that it had programmed work for her on both days, and that it had booked the motel where she was to stay.

However, the tribunal initially found that the woman had to show that the sexual activity which led to her injury had been expressly or impliedly induced or encouraged by her employer.

It found the employer did not know or reasonably expect that the employee would engage in sexual activity at the motel and that, unlike showering, sleeping and eating, sexual activity was not an ordinary incident of an overnight stay in a motel room during a business trip.

After three legal appeals, the full bench of the Federal Court found the tribunal had erred and the woman did not have to show that her employer had induced or encouraged her to have sex.

The three judges ruled last week that the woman’s ”lawful sexual activity” was not misconduct and she should not, therefore, be punished for it.

Comcare – the agency responsible for workplace safety, rehabilitation and compensation in the jurisdiction of the Commonwealth Government – must now appeal to the High Court if it wants the decision overturned, otherwise it has to pay up.

Andrew Douglas, principal at M&K Lawyers, told SmartCompany the case shows businesses need to have a travel policy and brand policy in place.

“In defining what is a work trip, you must describe what is work and what are the behaviours that are permitted on work trips,” he says.

Douglas says a travel policy can set out what is included in the definition of work, what is acceptable behaviour at work and what is not acceptable behaviour at work.

A brand policy then sets out what is bad behaviour outside of work, for example, excessive drinking and wild nights on a business trip.

“What the cases are demonstrating at the moment is sharp division between what is and what is not work, and courts are increasingly protecting out of work behaviour and drawing it within the definition of work,” Douglas says.

“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 worker’s compensation claims.”