Industrial manslaughter offence introduced in New South Wales
On 20 June 2024, the New South Wales Parliament passed legislation to include a new criminal offence of industrial manslaughter under work health and safety legislation.
Read more...Work from home arrangements have become the “new normal” across many workplaces since the COVID-19 pandemic.
It is well known that an employer’s work health and safety obligation to ensure, so far as is reasonably practicable, the health and safety of its employees applies to all work environments, including where employees work from home.
The relocation of the workplace to a person’s private premises exposes employers to outside factors, such as an employee’s personal circumstances, which may give rise of risks that hinder the employer’s obligation to ensure the health and safety of its employees.
Take, for example, the recent decision of State of New South Wales (Western NSW Local Health District) v Knight [2023] where the Personal Injury Commission of New South Wales (PIC NSW) dismissed an appeal against an earlier finding that an employee who was attacked by a dog while working from home was injured in the course of her employment.
The employee was employed as a Case Worker. The employer authorised the employee to work from home providing phone and video counselling sessions on the condition that noise levels be controlled to allow her to concentrate.
While working from home, the employee arranged to look after her daughter’s puppy. The employee tied the puppy up outside to reduce noise levels while she was taking phone calls. Shortly after finishing a work call, the employee discovered that the puppy was being attacked by a neighbour’s dog and intervened. In doing so, she sustained injuries to her hand and was diagnosed with post-traumatic stress disorder.
The employee lodged a workers’ compensation claim which was denied by the insurer on the basis that the injury did not arise out of, or in the course of, her employment and that her employment was not a substantial contributing factor to the injury.
At first instance, a Member of the PIC NSW found that:
- the employee’s act of ceasing her employment duties to intervene in the dog attack was a “reasonable and practical necessity and consistent with what her employer would have reasonably expected of her in the circumstances” and therefore did not take her outside the ordinary course of her employment; and
- the employment was a substantial contributing factor to the injury as the puppy would not have been tied up outside, making it susceptible to the dog attack, if not to facilitate a work environment which was sufficiently quiet and amenable to the employee being able to concentrate and complete her duties.
On this basis, the Member held that the employee was entitled to weekly workers’ compensation for the injuries she sustained as a result of the dog attack.
The employer appealed the decision before President Judge Phillips of the PIC NSW contending that the Member had, amongst other things, erred in concluding that the employee sustained injury in the course of employment on the basis that the employee was injured after leaving her property, and therefore her place of work.
The employer also contended that the Member had failed to consider non-work-related factors that contributed to the injuries such as the employee’s personal circumstances, which included that she was required to care for the puppy while her daughter was unwell.
President Phillips ultimately rejected all of the employer’s grounds for appeal. He found that based on the evidence available, the Member was correct in concluding that the employee was injured on her property and therefore, her place of work.
Further, President Phillips found that while the employee’s personal circumstances contributed to the injury, it was open for the Member to conclude that the probability of the injury occurring was substantially increased by the puppy being tied up at the front of her home in circumstances that arose from the employee “being at work and the nature of her employment”.
Things for employers to consider
This decision highlights the legal risks and obligations of employers in relation to employees who are working from home. In particular, the PIC NSW adopted a broad approach when considering the employer’s liability for workers’ compensation in circumstances where the employee was attacked by a neighbour’s dog while working remotely.
While this is an extreme scenario, it does raise the question of where an employer’s line of enquiry ends when managing the risks associated with employees working from home.
A cautious approach for employers is to adopt the view that liability could extend to any and every incident which may occur when an employee is working from home.
As employees may have now settled into permanent work from home arrangements, employers should consider implementing or refreshing the following measures to minimise the health and safety risks associated with employees working from home:
- completing a risk assessment of the work from home environment for each employee;
- ensuring your work from home policy is up to date and covers the various risks associated with working from home;
- ensuring that employees have been provided with guidelines or a work from home checklist on how to set up and maintain a safe work from home environment;
- having regular communication with employees who are working from home; and/or
- requiring employees to notify you if their circumstances change at home.
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
