Domestic and overseas travel has become highly accessible and affordable which has presented many opportunities for national and multinational businesses as employees can travel relatively easily and cheaply between offices, sites and clients. In fact, the prevalence of business travel is quite significant and in 2016, the Australian Bureau of Statistics reported 9% of overseas trips taken by Australian residents were related to business. This is quite a substantial figure and although long distance travel clearly offers many benefits for employers, it also raises questions as to their legal obligations and how to best manage employees who are away from the office and required to travel for work.
Businesses must consider three issues to ensure that their travelling employees are behaving and performing appropriately whilst also ensuring protection of the business's commercial interests and adherence to legal obligations.
- Manage employee behaviour and performance
Everyone would be aware of the saying: "when the cat's away, the mice will play". This saying is never more relevant than when employees are away travelling for work purposes, often away from their managers with little to no contact with them or others in the workplace. Whilst most employees who are travelling interstate or overseas would be sensible and senior enough to understand their obligations to behave appropriately and perform to their usual high standards, being away from their normal workplace and supervision can sometimes cause employees to lower their guard and relax their standards.
In Mitchell-Innes v Willis Australia Group Services Pty Ltd (No 2) [2014] NSWDC 250, a NSW General Manager was required to travel interstate to attend a training conference. The night before the conference, a group of staff went out for dinner and later went to a nearby pub, where a substantial amount of alcohol was consumed well into the following morning. The manager attended the training conference the next day where his colleagues claimed he smelt strongly of alcohol, was relaxed, playful, smiling, laughing, enjoying himself, talking loudly, slurring his words, making animal noises and throwing lollies. The business claimed the manager was intoxicated and his employment was terminated for gross misconduct. The Court found that his behaviour did not amount to misconduct, having regard to the fact the incident was a one-off and the workplace had a culture of consuming alcohol whilst wining and dining clients. The manager was initially awarded damages of almost $300,000, which was later reduced to $90,000 on appeal.
This case demonstrates the requirement for businesses to clearly articulate the standards expected of employees whilst they are travelling and that they can and will be held accountable for their actions if they misbehave whilst they are away. It also raises issues with businesses encouraging and supplying alcohol to employees, which often increases with business travel. If staff are likely to be drinking whilst they are working, businesses should consider implementing clear policies and expectations about the amount permitted to be consumed and the behaviour that is expected of them.
- Protect confidential information
In today's technological age, it is difficult to imagine an employee who is required to travel for work not using a portable device whilst they are travelling, whether that be a laptop, mobile phone or tablet. Whilst this offers obvious benefits for both the employee and the business, it also raises issues of how confidential information is protected, not only from misuse by hackers or unsecured networks, but also from employee's who have unfettered and unsupervised access to the business's confidential information.
Employees should be required to only use devices provided by the business for work purposes and not to use them for personal purposes whatsoever. Similarly, employees should not be permitted to use personal devices for work purposes under any circumstances as it is almost impossible to recover all confidential information upon an employee's termination or to determine where that confidential information might have been sent.
In APT Technology Pty Ltd v Aladesaye [2014] FCA 966 and APT Technology Pty Ltd v Aladesaye (No 2) [2016] FCA 203, an employee was employed by APT and worked remotely from his residential address. After suspicion of involvement with a rival company, APT retrieved the laptop and mobile phone they had issued to the employee and discovered he was servicing APT clients through a business he operated while still employed by APT. The employee had accessed and saved confidential files belonging to APT on his private computer, which were retained and used to benefit his new business. APT were successful in restraining the employee from dealing with or soliciting its clients and from disclosing APT's confidential information.
This case demonstrates the importance of ensuring the separation of work owned and issued devices and personal devices owned by employees. Businesses must have clear workplace policies and programs which prevent employees from accessing or saving company documents on private devices, particularly when staff are working remotely away from the office with little supervision.
- Ensure employee's health and safety
Most employers understand they have a duty of care to provide a safe working environment for their employees when they are working in a normal workplace, however, under work health and safety legislation, there is no differentiation made between an Australian workplace or an overseas place where an employee is working, whether that be a client's office, an airport or their hotel room. This means that even when employees are travelling overseas, employers are required to eliminate or minimise risks so far as reasonably practicable. When employees are travelling for work, a business may be required to (in addition to the usual precautions that businesses must take):
- Assist employees to obtain necessary travel vaccines
- Monitor official travel warnings and providing advice to the employee
- Implement an emergency response policy, especially if the employee is travelling to a potentially dangerous area
- Creat individual business travel plans so employees have support if something goes wrong
- Ensure that staff have travel insurance
In Workers Compensation Nominal Insurer v O'Donohue [2014] NSWWCCPD 1, a professional actor who was engaged under a NSW contract, ruptured his Achilles tendon whilst performing in Bahrain. As the employment was adequately connected to NSW, the actor was entitled to compensation. However, in another case, Qantas Airways Limited v Watson (No 3) [2010] NSWWCCPD 86, a pilot on a compulsory break from flying was not entitled to compensation for an injury sustained in a car accident when returning to his hotel after visiting friends, as he had not been encouraged or induced to be on a road at the time of the accident by his employer.
As these cases demonstrate, an employer will not be liable for any and all injuries an employee may suffer whilst overseas or out of the office. The injury or illness must have occurred in the course of or arising out of their employment.
As the globe becomes more interconnected with continuous improvements in technology being made, it is likely that many businesses will face challenges with having a mobile workforce that are travelling between different offices, clients and countries. Being prepared and understanding the business' obligations, will assist the business to protect its commercial interests whilst also ensuring that employees represent the business to a high standard.
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.
