Private conduct vs conduct "in the course of employment": further guidance for employers

The Queensland Industrial Relations Commission has held that a fatal injury sustained by an employee at a work Christmas function did not arise "in the course of employment" because the employee made a wholly private choice to engage in the activity that gave rise to the injury (Australian Leisure & Hospitality Group Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) & Campbell [2014] QIRC 105).

Central to this case was the issue of whether the employee's conduct was private conduct or whether such conduct was "in the course of employment". While this issue can be very difficult to determine, it is important for employers to understand what activities are likely to be considered "in the course of employment".

This decision:

• provides a useful example of how the distinction between private conduct and conduct in the course of employment will be considered and determined by courts and tribunals; and  
• highlights that a mere temporal relationship between the injury and the work is not, of itself, sufficient to warrant a finding of employer liability.

What was the case about?

The Australian Leisure and Hospitality Group (the ALH Group) appealed against a decision of the Workers Compensation Regulator to accept a claim by Mr Campbell for workers compensation benefits under the Workers Compensation and Rehabilitation Act 2003 consequent on the death of his wife.

Mrs Campbell died as a result of head and neck injuries sustained after diving into the Noosa River while attending a Christmas function organised by her work. Under the Act, "injury" is defined to include:

"…death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury...".

Issue to be determined by the Commission

The Commission referred to the High Court decision in Comcare v PVYW [2013] HCA 41, which outlined the principles to be applied in determining whether an injury sustained by an employee in a non-work activity, outside of any working period, should be considered to have arisen "in the course of employment". In that case, the High Court held that an injury will have been suffered in the course of employment if the injury was suffered either:

• by an employee while engaged in an activity in which the employer has induced or encouraged the employee to engage; or
• at and by reference to a place where the employer had induced or encouraged the employee to be.

Adopting that reasoning, the Commission held that the relevant question it had to determine was: did the employer induce or encourage the employee to engage in the activity of diving into the Noosa river?

While it was conceded that Mrs Campbell was encouraged to attend the Christmas function, it was not conceded that the employer induced or encouraged her to engage in the activity that she did (namely, diving into the Noosa River). Evidence was led at the hearing that:

• the store manager had supported the Christmas function, which was a barbeque organised by a small working group of employees who raised money amongst the staff to fund it and it was advertised on the staff notice board (inviting employees to attend);
• at the function, Mrs Campbell and a colleague, Ms Perry, asked the store manager to take photographs of them running into the Noosa River and that shortly after Mrs Campbell and her colleague dove into the water, Ms Perry began screaming for help;
• the store manager ran into the Noosa River to assist Mrs Campbell, an ambulance was called, Mrs Campbell was transported to the Noosa Hospital and subsequently died from her injuries;
• during the function, other children and staff members had gone swimming in the Noosa River and the store manager had not taken any step to direct them (or Mrs Campbell and Ms Perry) to not go in the water.

What did the Commission find?

The Commission held that the evidence did not support a conclusion that the store manager had induced or encouraged Mrs Campbell to dive into the Noosa River and found that Mrs Campbell's injury did not therefore arise in the course of her employment.

In reaching this decision, the Commission stated that Mrs Campbell was on a frolic of her own and reiterated that, where an "employee makes a wholly private choice to engage in an activity which falls outside the ambit of the employer's requirement that the employee be away from the usual 'place' of work… such choices will carry their own benefits, risks and consequences which the employer is not required to insure against."

What are the implications of the Commission's findings for employers?

In a previous article on sexual harassment, we discussed the importance of employers being aware of the fact that just because a complaint is made does not mean that the conduct complained of is sexual in nature. Similarly, this case highlights that, in a workers compensation context, employers should not assume that they are responsible for an employee's injury simply because there is a temporal connection between the injury and the work.

Following the High Court's decision in PVYW, this case clarifies that:

• where the injury occurs outside work hours and does not involve a work activity, for a worker to be compensable, the employer must encourage or induce the worker to engage in the activity which caused the injury;
• it is not enough that the injured employee was at a place, even if induced to be there by their employer; and
• the employee must be doing the very thing that the employer encouraged the employee to do when the injury occurred.

When these issues arise, employers should consider seeking advice to determine whether or not the injury arose in the course of employment. 

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