Are Employers Liable for a Drunk Employee’s Behaviour?

Employers owe a duty of care to their employees to take reasonable care to avoid exposing them to unnecessary risks of injury. What happens when such risks arise outside of an employer’s usual work hours involving the consumption of alcohol? This issue was considered by the Supreme Court of Queensland in their recent decision of Schokman v CCIG Investments Pty Ltd [2021] QSC 120.

In that case, Aaron Schokman was a 25-year-old hospitality worker, employed by CCIG Investments Pty Ltd (the employer) to work as the supervisor at the “Mermaids” restaurant at the Daydream Island Resort and Spa. It was a term of Mr Schokman’s employment contract that he live in shared accommodation. Mr Schokman shared his room with a co-worker, Mr Hewett, who was employed as a team leader, which was an inferior position to that held by Mr Schokman.

Mr Schokman made complaints to management about sharing a room with Mr Hewett. At no time did Mr Schokman complain about any specific safety issues with sharing a room with Mr Hewett, rather his complaints related to not wanting to share a room with a subordinate employee and Mr Hewett’s being ‘odd.’

In the early hours of 7 November 2016, Mr Hewett returned to the shared room highly intoxicated. About half an hour after his return, Mr Schokman alleges he woke up to Mr Hewett urinating on his face and in his mouth.

It was accepted at trial that Mr Hewett’s actions (referred to as the ‘urination event’) were an accident.

Mr Schokman suffered from two serious pre-existing medical conditions – narcolepsy (a sleep disorder characterised by overwhelming daytime drowsiness and sudden attacks of sleep) and cataplexy (a sudden and ordinarily brief loss of voluntary muscle tone triggered by strong emotions such as laughter or emotional stress). The employer was made aware of these conditions when Mr Schokman accepted his offer of employment, though Mr Schokman reported being able to function at close to 100% and that his conditions would not affect his employment.

It was accepted at trial that both of these conditions had improved significantly and were well controlled by medication at the time of the urination event.  The Court also accepted that Mr Schokman had suffered from a permanent aggravation of his cataplexy, due to the anxiety and stress caused by the ‘urination event.’

Mr Schokman ultimately failed to prove his employer breached their duty of care. The Court found:

  • The ‘urination’ event itself was not foreseeable by the employer.
  • The foreseeable risk was that Mr Schokman would have a “confrontation or unpleasant personal interaction” with Mr Hewett as his roommate.
  • Contemporaneous records provided by the employer demonstrated that Mr Schokman simply did not wish to share a room with a subordinate, rather than due to any specific safety issue.
  • There was no evidence of any previous incidents involving confrontations or unpleasant interactions between roommates or an alcohol problem, which would require the employer to take any action in response to the risk of an unpleasant interaction and it was difficult to determine what reasonable and practical measures the employer could have taken in this case.
  • Even if the employer did not have a reasonable and appropriate alcohol policy in place, this would not have prevented the ‘urination event’ from occurring, with the court accepting that outside of work hours, the employer “lacked ammunition” to control a worker’s behaviour.
  • The employer was not vicariously liable for the actions of Mr Hewett as there was no “connection or nexus” between his employment and his actions.

Key Learnings

While this is a highly unusual case, it provides some key learnings for employers:

  • The Court accepted the employer has little power or control over an employee’s actions outside of work hours. This shows employers can treat their employees like adults.
  • It is important to keep detailed contemporaneous records and evidence, as it is very difficult for injured workers to persuade a court to accept contrary evidence.
  • Complaints made by workers must be in respect of real safety issues, not simply issues related to comfort or dislike of other workers (particularly in relation to shared accommodation).
  • While consideration needs to be given to a broad range of risks which may arise in relation to a worker’s employment, employers do not need to completely eliminate all risks. The onus of proof is on the injured worker to prove (with a fair degree of precision) some practical measure the employer could undertake to minimise the risk of injury, particularly in circumstances where the probability and risk of injury is low.
“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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