Injuries arising outside of work conduct: compensable injury or not?
Warning: this article contains sensitive content and discusses the topic of sexual assault and rape.
A recent decision from the Tasmanian Civil and Administrative Tribunal (the Tribunal) has considered the common issue of when injuries occur outside of regular working hours, can they still be considered work-related? The outcome of this case provides new insights into how out-of-hours conduct is assessed in workers' compensation claims. The case involved an employee (the Employee) who was diagnosed with post-traumatic stress disorder (PTSD) after being sexually assaulted during a work-related trip, raising questions about whether the injury arose in the course of her employment.
Facts
The Employee attended a conference in November 2023. The conference was sponsored by her employer and she was required to attend as a representative of the company, in accordance with her employment contract which specifically provided that in addition to her ordinary hours of work, the employer may require her attendance at functions or social gatherings which ‘enhance’ the employer’s business.
On the first day of the conference, the Employee participated in a sponsor’s stall and attended a dinner, which concluded at 10:30pm. At around 2:00am, several hours after the dinner had ended, the Employee was sexually assaulted by a conference delegate (who was not an employee of the same employer) in his villa at the resort.
The Employee reported the incident to her employer the following day and sought support, including funding for psychological treatment. She later made a claim for workers’ compensation, stating that the PTSD she suffered was a result of the assault. Her employer, however, disputed the claim, arguing that the sexual assault occurred outside of the work-related activities and hours, meaning it was not compensable under the Workers Rehabilitation and Compensation Act 1988 (Tas).
As the employer disputed liability, the Tribunal was in this case required to consider whether there was a ‘reasonably arguable case’ concerning the employer’s liability because, if so, the employer was permitted to cease making weekly payments.
Decision
The Tribunal had to determine whether the PTSD was connected to the Employee’s employment or if it was a personal matter, disconnected from her work responsibilities.
The employer acknowledged that the Employee had suffered PTSD but contended that the incident took place outside of the scope of her work duties, as the official activities had ended. It noted that the sexual assault occurred around 3.5 hours after the scheduled end of the dinner, and the employer did not encourage or induce the Employee to stay at the resort beyond the work events.
The Employee argued that attending the conference, including staying overnight at the resort, was required by her employment contract. Her presence at the event was part of her official duties as a representative of the firm, and therefore the incident should be seen as ‘within’ or ‘incidental to’ her work responsibilities.
The Tribunal ultimately found that the employer had a ‘reasonably arguable case’ that it was not liable for the injury suffered by the Employee. The Employee’s attendance at the conference and the resort was indeed in line with her employment requirements, as her contract obligated her to attend such events. However, the attendance at the resort was arguably not an event induced or encouraged by her employer to use the test applied by the High Court of Australia in Comcare v PVYW [2013] HCA 41 (Comcare).
It is important to note the fine line between the facts in the Comcare case and the present case. In Comcare, the employee's injury resulted during the act of engaging in sexual intercourse. In contrast, in this case, the Employee attended the villa of the delegate, and her injury directly resulted from the sexual assault.
In this case, orders were made confirming that the employer was not required to make weekly payments or other benefits. It is, however, still open to the Employee to pursue a formal determination of her claim.
Take Home Messages
The Tribunal’s decision highlights the complexities of determining whether injuries sustained outside of work hours can be linked to an employee's work duties for the purposes of workers’ compensation claims. For an injury to be compensable, there needs to be a clear connection between the employee's duties and the incident, even if it occurs after hours, and further that the employer needs to induce or encourage the activity leading to the injury.
Should you wish to discuss the matters raised in this article, please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au, or Shivani Gandhi on +61 8 8210 1227 or sgandhi@normans.com.au.
