By Bethany Silverman

Employers have obligations under Work Health & Safety legislation to do whatever is reasonably practicable to ensure the health and safety of their employees in the workplace. The ‘workplace’ is known to be any location that an employee is required to perform their duties from, including working from home. With Victoria reintroducing its Stay At Home restrictions, now more than ever, employers are asking for clarity around how far their liability extends to ensuring a safe working environment for employees who are working from home. Also, employers wish to know whether they may be responsible for an injury an employee sustains whilst working from home. The Court of Appeal of the Supreme Court of New South Wales provides some clarity.

In the case of Workers Compensation Nominal Insurer v Hill [2020], the Court of Appeal of the Supreme Court of New South Wales has confirmed that a death which occurred whilst working from home arose out of and in the course of the deceased’s employment, and ordered the Workers Compensation Nominal Insurer to pay death benefits.

The deceased and her de-facto partner (who was also her supervisor) worked as financial advisors for a family company. The business was conducted from the family home in NSW, where they lived with the deceased’s two dependent children.

On 16 June 2010, the deceased’s de-facto partner, suffering from paranoid delusions that the deceased was conspiring with authorities to ruin him professionally, attacked her with a hammer, killing her. Although charged with her murder, he was found not guilty on the grounds of insanity.

The deceased’s children claimed for death benefits under the Workers Compensation Act 1987 (NSW) (‘Workers Compensation Scheme’) against the Workers Compensation Nominal Insurer (‘Insurer’), arguing that their mother’s death resulted from injuries sustained in the course of her employment. The Insurer denied any liability, arguing that the delusions of the deceased’s de-facto partner were not real and therefore could not possibly form part of the conditions of the deceased’s employment and hence, there could be no connection between the employment and her death.

The matter was first heard by the Workers Compensation Commission, where it was decided that:

  1. the deceased’s death arose out of her employment; and
  2. the deceased’s employment was a substantial contributing factor to her injuries and resulting death.

The Insurer appealed, however, the appeal was rejected by the Workers Compensation Commission, prompting an appeal to the NSW Court of Appeal.

The Court of Appeal upheld the decision of the Workers Compensation Commission and awarded the deceased’s children approximately $450,000 in death benefits. The Court confirmed that whether the offending conduct (in this case the attack which resulted in death) was carried out mistakenly or without justification (due to the de-facto partner’s delusions not being real) does not negate the question of causation. The Court also reiterated that the ‘course of employment’ extends beyond a worker’s normal hours and place of work and that if a worker is “doing something which is part of or incidental to his service” then this is considered to be within the course of employment.

Since the deceased was performing work at the time she was attacked by her de-facto partner, albeit not actually physically performing work but rather ‘on call’ and readily available to answer the phone if required, and the attack had a direct connection between the deceased’s employment, that is, her partner’s delusions related to the way the deceased performed her work duties, her death was accepted to have occurred during the course of her employment.

This case serves as a timely reminder for all employers who have working from home arrangements in place with their employees. Employers not only need to ensure the physical safety of the home office where the employee will be set up for work, but also consider whether there are any psychological stressors in the home such as abusive and hostile family members. This is particularly important for employers in Victoria where Stay at Home orders are once again in place and employers must allow their employees to work from home if reasonably practicable to do so.

For further information regarding workplace health and safety liability, contact HR Assured’s Telephone Advisory Service.

Bethany Silverman is a qualified Workplace Relations Consultant at HR Assured. She regularly engages businesses in matters of compliance and best practice. She has a particular interest in the performance management process.