Last month the NSW Supreme Court sent shockwaves through the business world by determining that an employer can be held responsible for domestic violence when employees work from home. This decision, coupled with current WHS regulations, pretty much guarantees that no employer in Australia is legally prepared or covered for WFH (work from home) employees.
Whether an employee is WFH for five days a week or just one day a month, the legal responsibilities are the same. The reality is that employers have to ensure a safe workplace, this responsibility now extends to every home that is used for work purposes.
So let’s review the NSW Supreme Court’s ruling. This was a workers’ compensation claim by the children of a woman that was killed by her de facto partner while working at home. The complication is that they were also business partners for the same family financial planning business, so they were work partners and life partners. It was alleged that Mr Hill was suffering paranoid delusions that Ms Carroll was conspiring to steal his clients and ruin him. The judgement stated that an employer might not always be responsible for domestic violence between couples who work from home but in this case, there was a “palpable and direct connection between Mr Hill’s delusions, Ms Carroll’s employment and the harm suffered by her”.
In response to the above ruling, Hayley Foster (Chief Executive, Women’s Safety NSW) stated that “it is not an intrusion of privacy for workplaces to get involved in family violence situations”. Ms Foster further stated: “once we get to the stage where people are unsafe, where they’re experiencing violence and abuse, then it actually is no longer a private matter”.
So what does this mean for Australian businesses?
With the dramatic increase of full or partial WFH arrangements for most office-based employees, it is now imperative that employers conduct far more comprehensive screening of employees and recruitment candidates including all facets of their home. This is no longer just about the chair type, desk height and power cords running over the carpet. Every employer is responsible for providing a healthy and safe work environment; this latest ruling has essentially expanded the scope of these responsibilities.
It will be incumbent on the employer to provide existing and new employees with the ability to safely disclose any potential risks (including domestic violence), evaluate these risks and provide either appropriate remedies for any identified risk or, failing any remedies, the determination that WFH will not be an option for some employees until potential risks are mitigated. As part of this process, it should be imperative that each employee actually has a say as to whether they would, or wouldn’t, like to work from home; it is not just an employer’s decision as it is not just an employee’s decision.
Based on numerous discussions with business owners and management teams, I don’t know of any employers that are fully prepared for WFH and the ramifications of this new normal. What I do know is that WFH management should now be on the agenda of every board and senior management meeting to ensure that they are adequately protecting their organisation and employees.
The good news is that Peoplogica and one of its partners are currently working on an employee/ candidate screening platform that will allow employers to provide employee assistance and make appropriate decisions so that they do not breach their WHS responsibilities in the future.
If you are concerned about how WFH could be breaching your duty of care and are not 100% confident that you have the right systems in place to cover you in the event that an accident occurs in your worker’s home, please talk to one of our consultants as they will be able to assist you to understand what you can do today to make sure you and your business are protected.
Get in touch with the team at Peoplogica via email (info@peoplogica.com) or (02) 9936 9000.
Written by Mark Purbrick
