среда, 13 ноября 2013 г.

The liability of an employer for injury of an employee away from an office

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How far does your liability extend? High Court decision
Wednesday, 13th November 2013, by Joanna Weekes
In today's Health & Safety Bulletin:
  • High court decision may have effect on determining when a worker's actions are in connection with employment
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Dear Reader,
Did you read about the recent workers' compensation claim that went to the High Court after an employee was injured during very private activities in a hotel room, while they were on location for a work purpose?
I'd be surprised if you didn't because it was controversial to say the least.
Today, Michael Selinger, Editor-in-Chief of the Health & Safety Handbook, explains what the result of this case really means for you in relation to liability for worker injuries and how far that liability extends.
While other cases have found that employers are liable, this case shows that perhaps the court will not extend the liability as far as we may have initially thought.
Read on to find out more….
Have a great day,
Joanna Weekes
Joanna Weekes
Health & Safety Bulletin

How far does your liability extend? High Court decision
By Michael Selinger
Editor-in-Chief, Health & Safety Handbook
The High Court's recent 'sex-in-the-hotel' decision (Comcare v PVYW [2013] HCA 41) created a lot of press but what does it really mean for you?
The issue decided was very narrow – is an employer always liable for any injury suffered by an employee when they are working away from home at the request of their employer? The answer was no – but did the decision make it any clearer for future cases? Maybe not.
The facts of the case centred around the activities of a federal government worker, who was covered by the Comcare workers' compensation scheme. Under this scheme, injuries sustained by an employee during an interval or interlude in employment were compensable, unless the employee had engaged in gross misconduct. This includes an injury sustained during an overnight stay of an employee who has been directed to attend another location for work. In this case, there was no suggestion of gross misconduct but rather the question was whether the nature of the activity in question, which led to a light fitting being displaced and causing injury to the employee, was a compensable injury.
Many federal court judges reviewed the matter before the High Court ultimately split on its conclusion (four judges to two) that the injury was not compensable. Up until this time there had been many occasions where employees had been compensated for injuries sustained while away from work, including workers injured in hotel showers or when on a recreational field trip during a period of working away from home.
In this case though, the High Court decided that it is not enough that the employee be required to work away from home but that they also be induced or encouraged by the employer to participate in the activity that led to their injury.
What does this decision mean?
The direct ramifications of the decision are probably limited. The number of employees who are injured while working away from home will still largely be entitled to compensation. But the decision will also allow insurers to look more closely at the factual scenario of any injury sustained by an employee away from the office to see whether it falls outside of compensation.
It may have broader implications though in the area of safety law where employers can be liable for after hours office functions and social activities which they have encouraged their staff to attend. The duty of care may now be clearer as a result of this decision which would suggest that the High Court will draw a line around an employer's duty of care to exclude private activities of the employee.
Nevertheless, you should remain vigilant in your business to ensure that all staff and managers are aware of when any out of office activity is considered part of work or not. Increasingly with the lines between private and public being blurred through social media, it is critical that the expectations of the business are made very clear to all involved.
Michael Selinger 
Health & Safety Handbook

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