Sexual assault at work: “significant contributing factor” or “in the course of work”

Oaks Hotels & Resorts Limited v Knauer [2018] QCA 359 

Fraser and Gotterson JJA and Bond J

Further to the earlier posting regarding the Industrial Court decision, Ms Knauer pursued her former employer through the Queensland Civil and Administrative Tribunal (QCAT).

In the Industrial Court appeal, the issue was whether the injury satisfied the definition in section 32 of the Workers’ Compensation and Rehabilitation Act 2003 – where employment is a “significant contributing factor” for the injury. Whereas pursuant to section 133(1) of the Anti-Discrimination Act 1991 (Qld) it is “in the course of work”.

Facts

[3] – [5]

The first respondent, Ms Knauer, was employed by the second respondent, a wholly owned subsidiary of the applicant. The third respondent, Mr Barton, was also engaged by the applicant as an after-hours caretaker at the Oaks Lexicon Hotel in Brisbane.

In 2010, Ms Knauer was due to commence work for the applicant in Brisbane (at another property owned by the applicant), the director and CEO of the applicant company, Mr Pointon, suggested that she reside, free-of-charge, in the two-bedroom unit provided to Mr Barton at the Oaks Lexicon Hotel. Mr Pointon requested they meet, after which Ms Knauer then moved into the unit’s spare bedroom. That first night, Ms Knauer awoke at 5:00 am to find Mr Barton naked in her bedroom and indecently assaulted her.

At the time of the assault, Mr Barton was engaged by the applicant to provide daily, after-hours caretaking services between 10:00 pm and 6:00 am at the Oaks Lexicon Hotel. During those hours, his work obligations included responding to late-guest arrivals and emergencies, and being in close-enough proximity to be able to respond within a reasonable time to any such events. He was further required to remain vigilant for potential safety risks and report these to the building manager. Although he was not precluded from sleeping during his work hours, Mr Barton was required to “remain sober and present in a professional manner” [4]. In consideration, Mr Barton was provided the two-bedroom unit at the Oaks Lexicon Hotel rent-free.

History

Ms Knauer commenced proceedings in the Queensland Civil and Administrative Tribunal against the applicant, the second respondent, and Mr Barton. Primary judgement holding the applicant vicariously liable was issued by Member Fitzpatrick on 6 December 2016: [2016] QCAT 505.

Appeal by the applicant to the Appeal tribunal was dismissed by Sheridan DCJ and Member Roney QC on 14 March 2018: [2018] QCATA 29.

The applicant then applied for leave to appeal the Appeal Tribunal’s decision on 17 April 2018. Leave to appeal was granted, and the appeal dismissed.

Issue for the Appeal

The main issue on appeal was whether the tribunal misapplied the meaning of the words “in the course of work” in s133(1) of the Anti-Discrimination Act 1991 (Qld).

Decision on the Issue

The Decision of the Court was given by Fraser JA, with which Gotterson JA and Bond J agreed [24] – [25].

 

Review of Primary Judgement: [7]

The applicant submitted at first instance that Mr Barton was only “working” whilst responding to a call, alarm, incident, or issue. With reference to The Commonwealth v Lyon (1979) 24 ALR 300, South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402
and the remedial nature of the Anti-Discrimination Act, the tribunal member rejected the applicant’s submission and concluded that the term “in the course of work” should be given a wide interpretation. The tribunal member concluded that Mr Barton was engaged to work between the hours of 10:00 pm and 6:00 am while waiting for any such emergency or call to arise and was therefore “engaged in the work he was required to perform at the time of the sexual assault”.

Decision of the Supreme Court of Queensland: [10] – [23]

The word “work”:

[10]: The applicant submitted that the term “work” within the phrase “in the course of work” only connotes “active” obligations, not including “passive” obligations such as those carried out by Mr Barton while waiting for a call or emergency to arise.

The Court again reviewed the two cases referred to by the tribunal member, concluding that both support the view that the term “in the course of work” should not be given the narrow construction requested by the applicant [11] – [12]. To do so would be “distinctly inapt to achieve the purpose expressed in the [Anti-Discrimination] Act of ‘promoting equality of opportunity for everyone’” [13].

[15]: Whether or not Mr Barton was asleep during working hours, he was fulfilling his contractual obligation to be in or near the hotel, and hit obligation to be vigilant for potential safety risks was “as much a part of his work” as his obligation to respond to calls.

The term “in the course of work”:

The applicant submitted that construction of the term should take into account common law principles of vicarious liability in torts [16]. However, the Court held that this interpretation was inappropriate as the Anti-Discrimination Act was enacted in circumstances of considerable uncertainty about the content of such common law principles and the decision in Jones v Tower Boot Co Ltd held that a similar phrase (“in the course of employment”) should not be limited with reference to analogies in tort [17] – [18].

The Court further cited the decision of Deane J in The Commonwealth v Lyon (1979) 24 ALR 300 at [303] – [304]:

“Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something which is a concomitant of, or reasonably incidental to, his employment to do that work. The course of employment is a temporal concept and it is unnecessary that there be any causal connection between the work which the employee is employed to do and the injury which he sustains. The scope of what is within it depends upon ‘the sufficiency of the connection between the employment and the thing done by the employee’ which ‘cannot but remain a matter of degree, in which time, place and circumstances, as well as practice, must be considered together with the conditions of the employment’.”

[19]: The Court concluded that “in the course of work” should be construed at least as broadly as was held in The Commonwealth v Lyon, in light of its “text and statutory purpose”. Therefore, the tribunal member “cannot be said to have erred in law in finding that the third respondent’s contravention occurred in the course of work”. The contravention occurred during Mr Barton’s defined work hours while he was in fact fulfilling, at least, his contractual obligation to remain in or near the hotel.

[20] – [22]: The Court dismissed two further arguments submitted by the applicant: that a narrow construction of the term “in the course of work” should be preferred with reference to s 28B of the Sex Discrimination Act and that the tribunal member’s construction would result in an absurdity that the applicant would not be vicariously liable for the same acts of Mr Barton if they were to occur shortly before or after his define work hours.

The appeal was dismissed [23].

David Cormack – Brisbane Barrister & Mediator

Madeleine Bowater – Research Assistant

 

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