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Dark nights are coming

Dark nights are coming (Last Updated On: July 10, 2017)

Case Study: Qantas Airways Ltd v Arnott

A Qantas flight attendant had flown from Sydney and was on “slip time” in a designated hotel in Dallas, due to return 4 days later. He visited a local restaurant and bar with other Qantas employees and stayed on alone in a bar. While crossing a car park back to his hotel, he was assaulted and robbed. Qantas was found to be vicariously liable for his injuries because they happened in the course of employment. This decision was upheld on appeal.

Background

The law says there is a special legal relationship between employer and employee, which means the employer is “vicariously liable” if employees are injured in the course of employment. One contentious claim in this case was whether the Qantas employee was in the “course of employment” while he was drinking in the bar, when he crossed the car park and when he was assaulted. Another contention was whether his employment was a “substantial contributing factor” to his injuries.

Facts

Mr Arnott was a long haul flight attendant with Qantas and he was scheduled to fly to Dallas for 4 days before returning to Sydney. In the Dallas “slip hotel”, he was on “slip time” and was paid for each hour and given a meal allowance of $US138 a day. Qantas always chose the hotels and gave flight attendants an information sheet about the immediate local area. They were expected to shop, dine and explore tourist attractions to help them give better service to their customers.

On this occasion, Mr Arnott and his crew went out in Sundance Square to a local restaurant followed by a bar. When the others left, he stayed on another half an hour in the bar to listen to more live music and then left around 2am. Although it was only 200-250 metres to his hotel, Mr Arnott was assaulted in the car park and robbed. He suffered a closed head injury, dental and facial injuries, and spinal injuries.

Mr Arnott put in a claim for payments of weekly compensation and medical expenses. Qantas stated it was not liable because the injury did not occur during the course of employment and because his employment was not a substantial contributing factor to his injuries. The case went to the Workers Compensation Commission.

Decision

The arbitrator found Mr Arnott was injured during “slip time” – an interval during a period of work – and was taking part in an activity the employer endorsed. His employment was a substantial contributing factor because Qantas deliberately chose hotels near tourist locations, in this case, Sundance Square. The company encouraged employees to get to know the local area, did not limit or prohibit alcohol during slip time and imposed no curfew. Therefore the arbitrator considered there was a clear link between Mr Arnott’s employment and his injuries.

Appeal decision

On appeal, Qantas argued Mr Arnott was on a “frolic of his own” in the bar (a legal expression to say he was not on his employer’s business) and this was a direct cause of the assault. The company said it had not urged him to keep drinking once his colleagues left for the slip hotel nor had it directly encouraged him to enjoy activities in Sundance Square.

The law goes beyond the circumstances of the injury itself and considers the general nature and circumstances of the employment. In this case:

–   The crew were paid a daily allowance in cash at the slip hotel;
–   Qantas knew the crew would leave the slip hotel to eat, shop and relax;
–   there were no curfews, limits or prohibitions on alcohol;
–   Mr Arnott was injured at a location he was encouraged to visit;
–   he had not been told to expect further work before the return flight;
–   he was the victim of unprovoked assault.

Qantas had a detailed procedure for selecting a slip hotel according to local attractions, so protests about not endorsing Mr Arnott to behave as he did were hollow. He was in an area condoned by Qantas and he would not have been in Sundance Square if Qantas had not encouraged him to be there.

Another discussion was about gross misconduct. Mr Arnott would have been outside the course of his employment if he had engaged in gross misconduct. Staying at the bar or being left alone was not considered serious misconduct and there was no evidence that being intoxicated caused him to be attacked. He was simply enjoying local amenities and using his meal allowance.

His employment was considered a substantial contributing factor to his injuries because he was a victim of assault during an interval in his employment. The president agreed with the arbitrator’s decision.

Lessons for employers

Business trips
This case warns employers that they could be responsible for what their employees do in the course of their employment, even if they are not actually working at the time. Qantas was still responsible for the flight attendant’s wellbeing, even though he was on “slip time”.

If your employees are on a business trip, you may be responsible for their behaviour, even when they are not working. If injured on a business trip, unless your employees engage in serious misconduct, they could claim workers compensation. Even heavy drinking might not be considered important unless it was serious misconduct and caused the worker’s injury.

Following this case, you may want to tighten your policies for business trips, including curfews or alcohol restrictions to limit the risk of possible workers compensation claims.

Lone workers
This case also warns employers about the risks of lone working. Lone workers often work in the dark, in remote locations or they need to open and close work premises at unsociable hours. They are more at risk than other employees of violent attack or serious road accidents. Without supervision, they might also adopt unsafe work practices, such as manual handling of heavy goods.

As an employer you have to reduce the risk to your lone workers by training them fully, providing good supervision and putting effective emergency procedures in place for potentially violent situations.

During the winter, employees are more likely to work or travel in the darkness. If you need any guidance on reducing risks to your lone workers or on-call workers, or creating policies to minimise the risks for your employees on business trips or conferences, please call Employsure today on 1300 651 415.

Caroline Pellow Employsure Claims Adviser

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