26.1.2 Case examples - Whether serious and wilful misconduct

1.Adams and Australian Postal Corporation (1993): the Tribunal held that, in the circumstances, eavesdropping was not serious and wilful misconduct. The Tribunal held that, at least in cases relating to physical injuries, the conduct must be such as to give rise to an immediate risk of injury. It must be a deliberate act, and not merely a thoughtless act done on the spur of the moment and it must be accompanied by an appreciation of the risk involved.

2.Vines and Comcare (1995): the employee was injured while playing soccer in the change room prior to bundying off from work. The employer had prohibited such activities by notices on several occasions, but not within the previous six to twelve months, and no disciplinary action had ever been taken apart from confiscating several soccer balls. In all the circumstances, the Tribunal found that the employer's attitude was 'equivalent to tacit approval' and that the employee was not precluded from compensation by S1 — 4(3).