On the job compo taken to new level: worker hurt during sex in hotel
On the job compo taken to new level: worker hurt during sex in hotel
Paul Bibby
July 27, 2011 – 3:09PMThe lawyer representing a woman who was injured while she was having sex in a hotel room during a work trip in rural NSW says his client was undertaking “normal behaviour” akin to bathing or sleeping and is entitled to compensation.
The woman, a Commonwealth Government employee whose name has been suppressed by the Federal Court, suffered injuries to her nose and mouth, as well as a psychiatric injury, when a light fitting attached to the wall of the hotel she was staying in fell on her head during sex.
The man in bed with her at the time has been described in court documents as “an acquaintance”.
The woman’s claim is based on the fact that she suffered the injuries “during the course of her employment”, because she was required to travel to the country town and stay overnight at attend a budget review meeting early the next morning.
Her barrister, Leo Grey, argued in the Federal Court today that she was “induced or encouraged” by her employer to spend the night at the hotel where the incident occurred, and was thus entitled to compensation under workers’ compensation laws.
The woman is appealing a decision by ComCare, upheld by the Administrative Appeals Tribunal, which found that sex was not an “ordinary activity” during an overnight stay.
But Mr Grey said the fact that his client was having sex had little to do with the case.
“This case … is as much about slipping in the shower, or being beaten by a gang of thugs or being shot by a jealous rival,” he said.
“[She] was sent to the town to a hotel that was selected by her particular department. She has been been encouraged to spent a particular period of employment at a particular place.”
He said that for the woman’s employer to avoid paying compensation, it needed to have informed her that having sex while on a work trip was not appropriate behaviour, either by telling her explicitly or through a list of rules such as a code of conduct. He said there was no evidence that such a direction was made.
“Having sex is just one of those things [like eating or bathing]. It’s not the 1920s after all.”
But the barrister for Comcare, Andrew Burger, said that there was not a sufficient degree of connection between the incident and what the woman was actually being employed to do.
He said compensation could only be paid if the woman’s employer had “encouraged or induced” the woman to have sex, which was not the case.
“There’s nothing about this that could have lead the employer to reasonably conclude that this injury might occurr,” he said.
“If she was to hold a swingers party that isn’t something that can be contemplated by the employer….and neither is this”
Federal Court Justice, John Nicholas will make a decision on the matter in the coming weeks.
click to link to original article and video
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Basically, a woman is required as part of her employment to stay overnight at a motel and ends up injured during what I can only imagine was great sex, considering they managed to dislodge a light fitting from the overhead wall.
In Australia, workers compensation can be pretty comprehensive. If you are required to stay at a hotel overnight and slip in the shower, you will most likely be covered. Similarly, if you go to a work function where alcohol is provided and fall over and injure yourself you may also be covered, though there is likely to be some responsibility placed on you in that case.
Though her claim has been denied initially, it raises an interesting point. Since sexual intercourse is a natural part of living, the same, if not more so, as showering or walking down stairs, why shouldn’t it be covered in the same way it would have been in either of those two instances? After all, it is not like she undertook an especially dangerous activity.
Obviously, if she had contracted an STD from unprotected sex it would be a different story. In this case, however, it was just good, clean, highly energetic sex, a natural part of living.
Wow. Whilst I am not saying that she should be denied workers compensation, I know of many genuinely injured workers who have had their genuine claims denied, whilst their injuries happened AT work , as in the office or in the workplace.
For example, on her my third week at her current job (90 day probationary period) a friend of mine managed to crank her neck in a way that totally locked it up while simply sitting at my desk, but sifting through a draw on her left. Needed to see the doc. Worker’s comp denied her claim because the work she was asked to do did “not explicitly cause the injury”. She didn’t expect any different…. But, if this woman makes a successful claim here – for having sex in a hotel room- I’d be stunned. Initially I (and many people) thought she was (literally) joking!
What do you think?
Private comment.
Private comment.
Private comment.
A judge has stressed that employers are obliged to communicate company policies to staff in “clear and unambiguous terms”, in awarding workers’ compensation to a Jetstar flight attendant who was issued a final warning for drinking alcohol on a plane.
NSW WCC President Judge Greg Keating found that Jetstar Airways Pty Ltd’s Alcohol and Other Drugs Policy was so “contradictory and confusing” that it could not be determined whether the worker – who sustained a psychological injury – had breached it.
He upheld an arbitrator’s finding that the employer’s handling of the incident was unreasonable.
President Keating heard that in December 2009 Jetstar directed the worker to fly from Sydney to Melbourne, where he had a shift the following day. While on the flight he had no operational duties, sat in a passenger seat, and ordered a small bottle of wine and some food. He gave a colleague his credit card as payment, but did not obtain a receipt.
Three weeks later Jetstar notified him it was investigating allegations that he had consumed alcohol while “on duty” and had not paid for the food and drink.
The worker contested the allegations, but was later told they had been substantiated and was issued the final written warning.
He claimed his injury arose from being subjected to “undue psychological stresses”.
The employer contended that the injury resulted from reasonable disciplinary action, and told the Commission that its alcohol policy only authorised drinking during “duty travel” if the worker was out of uniform and the travel was not followed by a period of work.
The worker argued that an operations manual stated drinking during duty travel was allowed if there were at least eight hours until the next shift.
He also submitted a letter from a colleague alleging she was told during a training session that drinking on duty travel was allowed if she wore a “Chardy Cardy”. That is, any type of jacket that covered the Jetstar uniform.
She claimed to have “engaged in Chardy Cardy behaviour” on several occasions and to have seen other crew members, including pilots, doing the same thing.
The worker contended that Jetstar’s response to his consumption of a small amount of alcohol inflight should have been to clarify the ambiguities in its alcohol policy, instead of giving him an “unreasonable” warning letter that was likely to induce a severe emotional reaction.
President Keating found the employer’s policy was confusing, and accepted the worker’s claim that his behaviour was “not only permissible … [but] a common occurrence at all levels of staff”.
He also rejected the employer’s claim that the worker should have raised anything he was unsure of in the policy during his training.
“Placing the onus on the worker to clarify Jetstar’s contradictory and confusing policies was an unreasonable response to that ground of the worker’s internal appeal,” President Keating said.
“The obligation was on Jetstar to communicate its policies and procedures in clear and unambiguous terms.”
URL: http://www.ohsalert.com.au/nl06_news_selected.php?act=2&selkey=46656
Jetstar Airways Pty Ltd v Canterbury [2011] NSWWCCPD 54 (22 September 2011)
http://www.austlii.edu.au/au/cases/nsw/NSWWCCPD/2011/54.html
Public servant wins compo over work trip sex injury
A public servant who injured herself while having sex on a work trip has won a compensation case.
The Federal Government employee, who cannot be named, was injured in 2007 when a glass light fitting came away from the wall above a bed as she was having sex with a man.
The incident took place in a motel room in a country town in New South Wales.
The woman said the light hit her in the face, injuring her nose, mouth and a tooth and also causing a psychiatric adjustment disorder.
The Government’s workplace safety body, ComCare, rejected the woman’s compensation claim and its decision was also upheld by the Administrative Appeals Tribunal.
But today she won an appeal against those decisions in the Federal Court.
Her employer has also been ordered to pay her court costs.
The judge, John Nicholas, said the appeals tribunal had erred in saying that the woman had to prove her injury had been caused by an activity that had been “implied” or “encouraged” by her employer.
Justice Nicholas said if the woman had been injured playing cards in her motel room she would get compensation, and that the incident was no different.
“There will be an order that the tribunal’s decision be set aside. I shall also make a declaration that the injuries suffered by the applicant on November 27, 2007 were suffered by her in the course of her employment,” he said.
“The respondent must pay the applicants costs of the appeal and her costs of the proceedings before the tribunal.”
http://www.abc.net.au/news/2012-04-19/public-servant-wins-compo-over-work-trip-sex-injury/3960636