In Australia, in PVYW v Comcare, the Federal Court of Australia was asked to consider whether a worker of a Commonwealth Government Agency, who was injured while having sex on a business trip, sustained her injuries in the course of her employment.
The Tribunal decided that the employee’s sexual activity was not an ordinary incident on an overnight stay, such as eating, showering or sleeping. It was a recreational activity that was not “countenanced” by her employer. Therefore, her injuries were not related to her employment and were of a private nature.
However, the employee argued that the word ‘countenance’ means not only to ‘support or approve’ but to ‘tolerate or permit’. There was no positive evidence to suggest that the sexual activity was not ‘countenanced’ by the employer.
Although accepted by both parties that the employee was not encouraged to partake in such activity, there was nothing to show that the employer either approved or disapproved of such activity.
The fact that the employee was engaged in sexual activity should not be treated any differently than had she been engaged in another recreational activity such as swimming in the motel pool, for example. The Tribunal decided, therefore, that as the injuries she sustained where sustained in a motel room where her employer had encouraged her to stay, there was a sufficient connection between her injuries and her employment.
A decision we are sure that turned the employer 50 shades of grey!
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