A Federal Government employee was required by her employer to
travel to country New South Wales to meet local staff. The employee
stayed in a motel which was booked by her employer. She met up with
a friend who lived in the town and after dinner at a local
restaurant, the pair went back to the employee's motel
The employee suffered facial injuries when a glass light fitting
above the bed was pulled from its mount while the couple was having
sex. She brought a worker's compensation claim for physical and
psychological injuries arising out of, or in the course of, her
The Administrative Appeals Tribunal considered that the
employee's overnight stay was an 'interval or
interlude' in the overall period of work. However, the Tribunal
found that the 'interval' had been interrupted when the
employee embarked upon a private activity. It therefore held that
the employee's injuries were not suffered in the course of her
On appeal, the Federal Court overturned the Tribunal's
decision, on the basis that it had erred in finding that it was
necessary for the employee to show that the particular activity
which led to her injury was one that had been induced or encouraged
by her employer. In the absence of any gross misconduct, it was
only necessary for her to show that the employer had encouraged her
to spend the interlude in a particular place.
Justice Nicholas said that if, for example, the employee had
been injured playing cards in the motel room she would have been
entitled to compensation, even if her employer had not encouraged
her to engage in such an activity. The fact that she was engaged in
sexual activity rather that some other recreational act while in
her motel room, did not lead to a different result.
PVYW v Comcare (No 2)  FCA
An employee need not prove that a particular activity which has
resulted in a compensable injury was induced by the employer.
Provided there is no 'gross misconduct' on the part of the
employee, they need only show that they were encouraged by the
employer to spend the 'interlude' in that particular
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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