Worker's compensation case raises question about where workplace starts and ends
With 4 in 10 Australians working from home at least one day a week, the line between personal and professional spaces has become increasingly blurred.
The recent South Australian case of Vercoe v. Local Government Association Workers Compensation Scheme [2024] SAET 91, (the “puppy fence” case) didn’t make new law, but comes at a time of debate about whether employers can monitor their employee’s work activities at home.
Ms Vercoe, an employee of a Council, was working from home in September 2022 in a sunroom which served as her home office. On taking a coffee break, she tripped and fell over a metal pet fence that she had installed to keep a puppy out of the room.
Vercoe made an application for workers compensation, which was initially rejected by the Respondent due to it not being satisfied that Vercoe’s employment was a significant contributing cause of her injuries.
However, in October 2024, the relevant tribunal ruled in favour of Vercoe, finding that her home was her place of employment at the time of the injury and that the puppy fence was a feature of her place of employment which created the hazard that caused her injuries.
The fact that the employer did not direct Vercoe to install the puppy fence, and in fact did not know about the installation of the puppy fence, did not prevent her employment from being a significant contributing cause of her injuries.
The Magistrate stressed that the workers compensation scheme is not predicated on the notion of fault, but instead on whether the injury had an employment-related cause. Whether the employer had failed to meet its work health and safety obligations was not therefore a point that was explored.
The issues raised in the Vercoe case are not new to this space, and were explored back in 2011 in the well-known case of Hargreaves v. Telstra Corporation Limited [2011] AATA 417.
In that case, Ms Hargreaves fell down the stairs whilst working from home and brought a workers compensation claim against her employer, Telstra. Telstra denied liability for the injuries on the basis that the fall did not arise out of, or were not in the course of, her employment. The tribunal ultimately found that Hargreaves’ injuries arose out of her employment.
The decisions in both cases raise some serious concerns for employers who allow employees to work from home. Employers will be liable for injuries if the relevant no-fault test in the applicable workers compensation legislation is satisfied.
Providing guidance to employees will not, in itself, reduce risk. However, there is a tension between the need for oversight of an employee’s home working arrangements and respecting an employee’s privacy in that environment, noting the submissions by various union groups on workplace surveillance to the recent Senate Inquiry into adopting AI.
Employers should, pursuant to their WHS/OHS duties, consult with employees about how they intend to address risks arising from working from home. They should also review regulator/advisory guidance material (see the Safe Work Australia guidance) and provide employees with a checklist of measures implemented/confirmed. It is important to regularly request confirmation from employees that they are still adhering to the checklist. This requires ongoing and active oversight of employees’ home offices and working conditions, considering risks such as isolated work and the effect that can have on mental health (especially when combined with other hazards such as vicarious trauma), and the risk of family violence.
Employers can provide safety training for remote work hazards on topics such as home ergonomics and safe navigation in the home office. Employers should also request information from remote working employees on any non-standard features of their home workspace that could pose unique risks such as temporary items, furniture, or equipment used for dual purposes.
Employers need to ensure that they have appropriately drafted policies that are relevant to the remote working context and that have been the subject of appropriate consultation. They should proactively work with employees to ensure ongoing engagement regarding remote working hazards, which, in turn, will minimise the ongoing risks to employee safety.
In light of the Vercoe decision, we recommend that employers:
Catherine Dunlop is a Partner and leader of the safety practice at Maddocks in Melbourne. Emma Short is a Senior Associate at Maddocks in Sydney, specialising in employment law. Sophie Cant is a Lawyer at Maddocks in Sydney.