Introduction
The working landscape has changed over the past few years, particularly with a major shift towards working from home (WFH) for many Australians. While this was not always a "new” concept, the recent coronavirus pandemic quickly paved the way towards a more flexible and versatile work life.
With this in mind, we will look into some examples on what constitutes an injury while WFH, and why employers need to be vigilant with ensuring safety for their workers, not only at the workplace, but also at their homes.
Safe Work Australia
Safe Work Australia provides the Work Health & Safety
(WHS) laws to eliminate risks for health and safety of workers, and other persons so far as is reasonably practicable. If it is not reasonably possible to eliminate risks, they must be minimised so far as is reasonably possible.
The duties and responsibilities of employers include:
- provide and maintain a work environment that is without risk to the health and safety of workers;
- provide adequate and accessible facilities for the welfare of workers to carry out their work;
- give workers the necessary information, instruction, training or supervision to do their job safely and without risks to health; and
- consult with workers, and health and safety representatives (HSRs), if you have them, about health and safety issues that may directly affect them.
For workers, duties and responsibilities include:
- take reasonable care for their own health and safety while at work;
- take reasonable care to not adversely affect others’ health and safety;
- comply with reasonable instructions; and
- co-operate with reasonable policies and procedures.
Example 1
In the case of
Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 it was established there was a causal connection between the workers injury
(fatality) and her employment. In this case, the worker (
worker) was killed by her de facto partner (
partner) at their home.
Both were employed by a family company, which carried on its business of financial advising from the family home. The attack by her partner was inspired by paranoid delusions and, while charged with murder, he was found not guilty on the ground of mental illness.
At the time of her death, the worker had two dependent children, a teenage son, and a baby. The children made claims for workers compensation.
There was an abundance of evidence on work practices of the worker, and of her partner. From this, it could be inferred that, at the time of the attack, the worker was in her workplace, and, at the very least, available on call for the purposes of her employment.
This was sufficient to support the finding that the injury that caused the workers death arose in the course of her employment. To establish a causal connection for the purposes of s 4 and s 9A of the WC 1987 Act, there was an abundance of evidence that the partner’s delusions derived from his and the worker’s common employment. The causal connection was subsequently satisfied in this case.
Example 2
In the case of
Hargreaves and Telstra Corporation Limited [2011] AATA 417, the worker fell down the stairs at home and injured her left shoulder on 21 August 2006. On 9 October 2006, she again fell down the stairs and injured her shoulder. She later developed depression and anxiety, which she claimed was related to the physical injuries and her inability to work.
The worker gave evidence that on both occasions when she fell down the stairs, she had been logged onto Telstra's computer system and had got up from her workstation to go downstairs. Both times she fell down the stairs she coughed and lost her balance.
On the first occasion, she was going downstairs to get cough mixture. The Tribunal considered the action of going to take medicine constituted “a need for an absence from her workstation for the necessities of nature such as a toilet break or a meal break”.
On the second occasion, she was going downstairs to lock her front door after her son had left for school. Telstra had instructed to her to make sure her front door was locked while she was working, as there had been a burglary in her local area the year before.
The Tribunal found the physical injuries arose out of the workers employment, including that the worker was complying with an instruction from her employer to keep the door locked during the day when she was working from home.
Conclusion
Due to the significant shift towards WFH for so many workers, it is now more important than ever for employers to be vigilant with ensuring safety for their workers, not only at the workplace, but also at their homes.
It is also critical to ensure communication between employers and workers regarding any issues that may arise while WFH, to ensure these are addressed and dealt with promptly before things escalate and the need for workers compensation.
Article written by Hicksons' Partner, Naomi Tancred and Solicitor, Nino Gabriel.