Australia: Driving Home From A Work Function Under The Influence Of Alcohol: In The Course Of Employment?

Last Updated: 3 November 2009

Article by Geoff Irvine and Daniel Davison

The New South Wales Workers Compensation Commission recently considered a case regarding a claim for workers compensation by an employee, Camilla Scharrer (Ms Scharrer) who suffered severe injuries in a motor vehicle accident.

The incident occurred in the early hours of 15 December 2001 when Ms Scharrer was travelling home from her employer's Christmas party in a work vehicle she was entitled to use for personal use. After the accident, she registered a blood alcohol reading of 0.124 per cent, which was in excess of the allowable limit of 0.05 per cent.

The employer, The Redrock Company Pty Ltd (Redrock) made weekly payments to Ms Scharrer from the time of the accident up to July 2005, at which point it decided to deny liability for future payments on the basis the injuries were attributable to the serious and wilful misconduct of Ms Scharrer because she was under the influence of alcohol.

At first instance, Arbitrator Oldfield held that Ms Scharrer suffered a serious and permanent disability in the course of her employment and the disqualifying provisions in the Workers Compensation Act 1987 (NSW) did not apply. Redrock appealed against the decision.

Deputy President O'Grady accepted that Ms Scharrer was in the "course of her employment" when she attended Redrock's work Christmas party. The Commission noted that Ms Scharrer, a sales representative, was not obliged to attend the party, but was expected to do so.

The major point of contention, however, was whether Ms Scharrer was acting in the course of her employment after she left the Christmas party.

Redrock argued that Ms Scharrer was no longer acting in the course of her employment after leaving the party up to the time of the accident because she had been directed by her managers to not drive home. On the other hand, Ms Scharrer argued that the direction of her managers did not take her outside of the course of employment and she was otherwise entitled to use the motor vehicle for personal use.

The Commission found that Ms Scharrer was not entitled to compensation because she was not within the course of her employment when she disobeyed her employer and drove home under the influence of alcohol.

An alternative argument by Ms Scharrer was based on the "journey provisions" found in section 10 of the Workers Compensation Act 1987 (NSW). Those provisions deem an employee to be in the course of employment where a worker is on a journey related to work. The Commission held that Ms Scharrer was journeying to her home, but was disqualified from relying upon that provision because her blood alcohol concentration was well in excess of the allowable limit, she had failed to demonstrate her intoxication did not contribute to the accident, and failed to show that the alcohol had been consumed involuntarily.

This decision demonstrates that in particular circumstances staff at work functions can be in the course of employment. It also shows that it is in the interests of employers to direct employees to not drive home from work functions when under the influence of alcohol, particularly where work-issued vehicles are involved.

The RedRock Company Pty Limited v Scharrer [2009] NSWWCCPD 72

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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