A recent decision from the Federal Court of Australia, Comcare v PVYW, upheld a decision from a judge granting benefits to a worker who was injured while having an affair during a business trip. The worker was sent out of town to observe the budgeting process of a local agency and was staying in a motel room reserved by her employer. She met a friend one evening and they both returned to her motel room. While they were engaging in sexual intercourse, a light fixture fell on the worker. She sustained injuries to her nose and mouth.
Benefits were originally denied because Comcare (Australia’s equivalent to the WSIB) did not believe that the injury had occurred “in the course of employment.” On appeal, the Federal Court of Australia disagreed, holding that injuries occurring during the intervals between the worker’s actual work duties were in the course of employment. After all, the worker was where her employer had directed her to be.
There was no need for the worker to also show that the activity was expressly or implicitly induced or encouraged by the employer. As the activity was not misconduct and the injury was not self-inflicted, the course of employment was not ruptured. The injuries were covered because the worker was required to be away from the office and particularly to stay at the motel in question.
This case makes us wonder about what constitutes “in the course of employment” in Ontario. While the test in Australia takes an “either or” approach, whether the worker was encouraged to be in a particular place or to engage in a particular activity, the WSIB adopts a cumulative examination of the time, place, and activity when determining if the accident occurred in the course of employment. As for the activity, the WSIB examines if it was “reasonably incidental to” employment (see, for example, Decision No. 1178/09). Board Policy states that personal activities, such as attending a cocktail club or movie theatre, are not considered in the course of employment when travelling (See Policy 15-03-05).
But consider Decision No. 44. The Tribunal found that a flight attendant on a layover in Amsterdam who was attacked at 1:30 a.m. while walking from a restaurant to a café was in the course of her employment. Although the activity was strictly social in nature, the Tribunal acknowledged that the employer exerted general control over her while on layover and that it was important for her to stay up late to adjust her internal clock.
Regardless of the more stringent approach adopted by the WSIB, unique fact patterns have the potential to widen the definition of the term “in the course of employment.”