An Overall Period or Episode of Work: Is The Interval or Interlude an Interruption?

An employer induces or encourages an employee to be at a particular place in an overall period or episode of work, which is not the usual location for that work, and there is an interval or interlude during that overall period or episode of work, to what extent is the employee acting “in the course of employment”? That was a question which confronted Nicholas J in PVYW v Comcare (No 2) [2012] FCA 395 (19 April 2012).

The Facts
The Applicant was required by her employer to travel with a fellow employee to a town away from her normal employment location and residence. She stayed at a motel which was booked by her employer. The Applicant made arrangements to meet up with a male friend who lived in that town. She met him at her motel, they went to a restaurant for a meal and then later that evening went back to the motel room of the Applicant, where they had sex. Whilst engaging in that sexual activity on the bed in the motel room the Applicant was injured. She was later taken to hospital for treatment.

The Applicant did not advise her employer how she intended to spend her time while she was at the motel or with whom, if anyone, she intended to associate while staying there.

There was no dispute that:

• At the relevant time, the Applicant was an employee of the employer temporarily away from her usual workplace at the request of her employer.
• The injuries suffered by the Applicant were both a physical and a psychological injury for the purposes of the Act, resulting in incapacity for work or an impairment.
• There was no “gross impropriety” in the behaviour of the Applicant on the day she suffered her injury.

The Court Found

• An employee who is at a particular place at which he or she is induced or encouraged to be by his or her employer during an interval or interlude in an overall period or episode of work will ordinarily be in the course of employment;
• Absent serious and wilful misconduct or an intentionally self-inflicted injury.
• The lawful sexual activity of the Applicant was not an interval or interlude that interrupted the relevant overall period or episode of work.
• The relevant connection or nexus to employment continued while the Applicant was in the motel room in which her employer had induced or encouraged her to stay.
• The injuries of the Applicant were suffered while she was in the motel room in which her employer had encouraged her to stay.
• The injuries were suffered by the Applicant while she was at a particular place where her employer induced or encouraged her to be during an interval or interlude between an overall period or episode of work.