Christmas is traditionally the time when we like to let our hair down and celebrate the end of the working year. It is also the time when injuries might happen.
Luckily you will usually be covered for injuries that occur at a Christmas party arranged by your employer.
However, if an injury results from your misconduct, you may be precluded from receiving workers compensation benefits. You will not be covered if your injury is the result of:
Gross misconduct that may take your actions outside of the course of your employment; or
Serious and wilful misconduct.
Whether your actions amount to "misconduct" will depend on the type of conduct the employer has expressly or impliedly approved of.
A great example of this is a case I was involved in many years ago, Whittingham v Ascott Air Conditioning Pty Ltd [2010] NSWWCCPD 36.
In that case I acted for a worker who claimed compensation for an injury he sustained while heavily intoxicated at his employer's Christmas party.
The employer alleged the injury resulted from both gross misconduct and serious and wilful misconduct and the case was referred to the Workers Compensation Commission for determination.
There was conflicting evidence about what occurred at the party, a barbeque held at the employer’s workshop. It was not disputed the employer supplied a large quantity of alcohol, including beer and spirits, or that the employees, including Mr Whittingham, started drinking at lunch time.
The Commission accepted the evidence of the least intoxicated person as being the most reliable and found Mr Whittingham had been running around attempting to “bull tackle” or “rugby tackle” various employees while he was very drunk.
On one occasion as he charged at the employer’s managing director, who side-stepped, he fell hard into the gutter and bushes. He injured his back, right shoulder and ribs in the fall.
At first instance, the Arbitrator determined Mr Whittingham's behavior was gross misconduct that took him outside the scope of his employment so that compensation was not payable.
However, we appealed and that decision was overturned by a Presidential Member of the Commission.
The Presidential Member noted:
The party was organised and funded by the employer.
The employer supplied alcohol free of charge.
There was more than enough alcohol for the occasion and workers were not limited in the number of drinks they could have.
The employer’s managing director was also well affected by alcohol.
The supervisor asked Mr Whittingham to “settle down” and to stop drinking for 20 minutes and have some water. Mr Whittingham ignored that request and continued his inappropriate behaviour.
In the circumstances, the Presidential Member found the employer had impliedly encouraged the excessive consumption of alcohol and took no effective steps to stop it when it was in a position to do so. As the excessive consumption of alcohol was approved by the employer, it was not gross misconduct on the part of Mr Whittingham and he was still in the course of his employment when he was injured.
In terms of "serious and wilful misconduct", the Commission noted that in order for conduct to be "wilful", it must be deliberate. The worker must assess the risks and proceed with the action in spite of the risks.
The Presidential Member in this case found: "In view of his level of intoxication, Mr Whittingham was incapable of assessing the risk involved in his actions and his actions cannot be described as wilful."
The appeal was successful and the worker was awarded compensation for the injuries sustained at the Christmas party.
A word of caution here, Mr Whittingham's case succeeded because his employer was seen to have encouraged the excessive drinking that lead to his injuries. If you get too carried away at your Christmas party you may still find yourself up the proverbial creek without a paddle.
I hope you all have a safe and injury free Christmas and New Year.
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