12 November 2024
5 min read
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In a world where remote work is becoming the new normal, the boundaries of workplace safety and employer liability are continuously tested.
How far does an employer's responsibility extend when an employee's home doubles as their office? Can a pet gate or a slippery kitchen floor become a workplace hazard? Can an employer escape liability when a worker creates their own hazards?
These questions came to the forefront in a recent case before the South Australian Employment Tribunal (SAET), where a council officer suffered injuries after tripping over a pet fence while on a coffee break at home. The SAET ultimately determined that the worker was entitled to compensation because the injuries arose out of employment and that the fence was a significant contributing cause.
This decision explores the unique hazards of remote work environments and highlights the risks and complexities arising as the lines between home and workplace continue to blur in today’s flexible work landscape.
In Lauren Vercoe v Local Government Association Workers Compensation Scheme [2024] SAET 91, a programmer employed by local government filed a workers’ compensation claim under the Return to Work Act 2014 (SA) after sustaining injuries while working from home.
During the COVID-19 pandemic, the employee worked from home in accordance with the State Government’s directions. Post-pandemic, a more flexible culture of working remained in place at the workplace, with staff being permitted to work from home with approval of their supervisors. As part of working from home arrangements, staff were required to complete a working from home checklist, which the programmer did not. Staff was also encouraged to get up from their workstation and to take regular short breaks.
The programer’s duties were typically office-based, and she had converted her sunroom into a home office, where she typically worked when working remotely.
In September 2022, the employee received approval from her employer to work from home for a day to look after a colleague's puppy. To manage the puppy, she set up a temporary pet fence in her home office, separating the puppy from her pet rabbit, which was kept in a cage in the same area. While on her approved work-from-home shift, she attempted to step over the fence while making her way to the kitchen, but tripped, fell and injured her shoulder and knee.
The employee asserted that her injury arose from employment, as her home office was her workplace during her approved remote work shift. She claimed that she fell during the course of a paid break and that, consequently, her injuries arose from employment.
The workers’ compensation insurer rejected the claim on the basis that it was not satisfied that the employee’s employment was a significant contributing cause of her injuries.
The insurer argued that, by setting up a pet fence across a walkway (without the employer’s direction or knowledge), the employee created a clear and unusual hazard. It also claimed that the employer could not have anticipated that the employee would have erected a pet fence, which made her route to the kitchen more hazardous.
The insurer further contended that, had the pet fence not been there, the fall would not have happened. Applying the “but for” test, the insurer concluded that the employee’s employment was not a significant contributing cause of the injury.
The two main issues before the SAET were:
With respect to the first issue, the SAET found the injury occurred when the employee was on an authorised paid break and therefore, the injury she sustained arose out of her employment within the meaning of section 7(5)(b) of the RTW Act.
In making this ruling, the SAET considered:
Regarding the second issue, the SAET concluded that employment was a substantial cause of the injuries because the fence erected by the employee to manage her colleague’s puppy was a feature of her place of employment on the day of the incident. In the tribunal’s view, the fence blocking a clear pathway between the sunroom and kitchen created, which was the only cause of the injuries.
SAET Auxiliary Deputy President Magistrate Carrel emphasised that the employer’s flexible work arrangements had “abrogated its responsibilities” for the “provision and maintenance of a safe working environment when working from home” to the employee.
The fact that the employee created her own workplace hazard does not preclude a finding that it is an employment-related cause, particularly given the level of autonomy she had in managing her own health and safety while working from home. In the current workers’ compensation scheme (a no-fault scheme), it is irrelevant that a worker has voluntarily subjected themselves to an abnormal risk or injury.
With flexible work here to stay, employers must grapple with the unexpected risks of employees working from home. While flexible work arrangements offer clear benefits, they also introduce new work health and safety risks that may not be present in traditional office settings.
Employers should be aware that a worker’s home, with its unique and sometimes unpredictable hazards, can be deemed a workplace for the purpose of work health and safety laws, entitling employees to workers' compensation for incidents occurring at home during working hours (including authorised breaks). This includes not only physical injuries but also psychiatric injuries, which may arise due to the isolation, stress or challenges of managing work-life balance in a home setting.
To mitigate these risks, employers implementing flexible work arrangements should establish clear policies, protocols and mechanisms to manage workplace safety in a home environment. This might include regular work-from-home safety checklists, mental health support resources, and open communication channels for employees to report hazards they experience at home. These measures will assist employers in assessing the risks and identifying and implementing control measures.
If you need assistance with reviewing your workplace policies, please get in touch with our team below.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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