Are post-work late nights out 'In the course of employment'?

20 August 2020

A worker who sustained an injury upon returning from a night out socialising during a work related trip was determined not to have sustained that injury in the course of her employment.

In issue

  • Whether an injury sustained after a night out socialising during a work trip can still be considered to arise 'in the course of employment'.

The background

The matter involves an appeal of a decision handed down by the Administrative Appeals Tribunal (AAT) in 2018.

The appellant was an employee of Telstra Corporation Limited (Telstra). On 14 April 2016, at approximately 2:30am, the appellant slipped and fell on wet tiles in the main foyer on the sixth floor of the Novotel Hotel in Collins Street, Melbourne (the hotel) after using the public bathroom (the incident). The appellant had been staying in the hotel, which was paid for by Telstra, for the purposes of attending a series of information technology workshops for her work.

On the evening of 13 April 2016, after the workshops on that day had completed, the appellant met with a colleague for a drink. The appellant and her colleague shared a bottle (or a good part of a bottle) of champagne, as well as a bottle of wine at dinner. They also attended a cocktail bar after dinner. The appellant and her colleague returned to the hotel at approximately 2:30am when the incident occurred. The appellant sustained a contusion of her hip in the fall and sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for her injury.

The appellant contended that her injury arose out of, or in the course of, her employment. Telstra rejected the application on 13 October 2016. The appellant requested that Telstra reconsider the determination, but the decision was ultimately reaffirmed on 9 December 2016.

The decision of the Administrative Appeals Tribunal

The appellant appealled to the AAT. The application was heard on 31 August 2018 and Telstra’s decision was affirmed. The AAT did not accept that the appellant’s injury arose out of, or in the course of, the worker’s employment with Telstra because it was determined that the injury did not arise by reference to the worker engaging in activity at the inducement or encouragement of her employer.

The issues on appeal

The appellant appealled the AAT’s finding on the basis that (1) her injury arose out of, or in the course of, her employment because it was sustained during an interval or interlude of an overall period of work or (2) in the alternative, the injury occurred in the hotel where she was required to stay by her employer, and the hazard was at that hotel. It was the appellant’s view that the AAT had misconstrued the statutory test inherent in the definition of 'injury'.

The decision on appeal

In hearing the appeal, the Federal Court of Australia considered the tests in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 and Comcare v PVYW (2013) 250 CLR 24 and did not accept that the appellant’s injury arose out of, or in the course of, her employment because the circumstances giving rise to the injury lacked connection with her employment due to the period of time between the work-related event ended, during which the appellant had been socialising, and the incident occurring.

Implications for you

The decision of the Federal Court of Australia makes it clear that there are a number of factors that ought be considered in determining whether an injury has 'arisen out of or in the course of employment'.

These factors - specifically the place where the injury occurred, timing, the employee’s actions and the circumstances which gave rise to the injury – can determine whether the link to 'employment' is severed, such that the injury will not be compensable, as in the current circumstances.

Dring v Telstra Corporation Limited [2020] FCA 699

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