In what must surely be one of the most entertaining employment cases this year, the NSW High Court held that a public servant who got injured during a business trip while having sex at a motel was entitled to workers compensation. The respective administrative tribunal held earlier that having sex at a motel was not an activity ordinarily associated with overnight stays during a business trip and upheld ComCare’s decision rejecting the claim, but the Court disagreed.
Whats at the heart of this case is the question when an accident qualifies as a work accident. For employee’s in New Zealand, the question is academic as ACC covers all accidents, regardless where and when and why they occur. However, for employers, the question can have financial implications as by law employers pay for the first week compensation when the accident happened at work. Injuries suffered at the office, in the elevator, on the work premises, on the way to the airport, all of these situations are work accidents. But what about the accident in the hotel shower before going to bed? Does it make a difference if the employee suffers an accident in the hotel restaurant or if the restaurant is off-site?
I guess the key to all these questions is the element of control. A place the employer can control has to be a workplace. This applies obviously to the office and the wider employer’s premises, but also to the cab, airplane and hotel room. Of course, the employer can not control the latter in the same way it can control the former. But in most cases the employer will determine where and when the employee goes to these places and for how long they will stay there. Control then is limited to the selection, of the cab company, the flight, the hotel, which makes them work places. And that means that all foreseeable activities are covered as work activities. After all, why should going to the bathroom at the airport on a business trip be treated differently then going to the bathroom at the office? Or taking a shower?
However, an employer may draw the line when activities are clearly outside the scope of general permissible and foreseeable behaviours. So now, what about sex at the motel? Counsel for the plaintiff argued that we no longer live in the 1920s and that sex,even on a business trip, is a common occurrence. The employer however argued that sex is certainly not ‘necessary’ and not part and parcel of a business trip (as dining and showering clearly is).
The Court, though, put more emphasis on the fact that the employer had not addressed or prohibited sexual conduct on business trips.
In other words, if foreseeable behaviour is not addressed in a policy and brought to the employee’s attention, the employer is liable when things go wrong.
So, there – employers, one more activity to cover in your policies.