Tuesday, 27 October 2020

Workers’ compensation case emphasises that family and domestic violence is a workplace issue

Family and domestic violence (FDV) is a critical national health and welfare issue. It is also an often underappreciated workplace issue, with the Australian Human Rights Commission estimating that violence from an intimate partner affects one in six Australian female workers. Further, one in five women say the violence continues at work.

In recognition of the prevalence of FDV in our community, the National Employment Standards and modern awards were updated to provide for 5 days of unpaid FDV Leave per annum, which enables employees to deal with the impact of FDV. In parallel, enterprise agreements for many years have been providing an entitlement to FDV, and increasingly this entitlement is paid.

Additionally, recent research indicates that Google searches related to FDV have increased by 75% since the first recorded COVID-19 case in Australia, and Monash University research has indicated that the number of first-time family violence reports had gone up for 42% per cent of practitioners surveyed since the COVID-19 pandemic commenced.

With a large proportion of Australian workers currently working from home in light of the COVID-19 pandemic, there are considerable concerns as to how this will impact individuals experiencing FDV and how employers can meet their safety obligations in respect to those individuals.

The extent of employer obligations and liability was emphasised in the recent case of Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, where the NSW Court of Appeal considered whether workers’ compensation was payable to the children of a worker, Ms Michel Carroll, who was tragically killed by her de facto partner whilst working from home where she and her partner operated a family run business together.

Following her death in 2010, Ms Carroll’s two children made claims for workers’ compensation on the basis that their mother’s death had occurred in the course of her employment. The claims were initially resisted by the relevant insurer on the basis that the family business was not registered.

In December 2018, some 8 years after Ms Carroll’s death, the Workers Compensation Commission in NSW found that Ms Carroll died as a result of injury arising out of and in the course of her employment and ordered payments in favour of her two children.

The insurer appealed this determination to the NSW Court of Appeal, who ultimately found that Ms Carroll was either actually performing employment related duties at the time of the attack or was “on call” at the time of her death, and therefore her death occurred in the course of her employment.

Additionally, the Court found that her employment was a predominant cause of her injuries which ultimately resulted in death because her partner experienced paranoid delusions relating to the way that she performed her work.

What does this mean for employers?

While this case refers to a scenario that could have significant consequences for employers, at the same time, it was based on very unique circumstances.

Despite this, it is now more relevant than ever to consider your obligations towards employees working from home in light of the current COVID-19 pandemic, with a large proportion of workforces continuing to work remotely and therefore without direct supervision.

Employers have a legal obligation to provide a safe and healthy work environment for all employees, as far as reasonably practicable.  This includes the consideration of both the physical and psychological safety of employees, and these obligations extend to where an employee is working from home.

Employers are encouraged to take proactive steps to support employees and monitor their health while working from home. Some suggestions include:

  • increasing awareness of FDV in the workforce more broadly, for example through toolbox talks and providing resources to staff including information regarding internal and external support mechanisms;
  • conducting FDV awareness training for managers. Specifically, how it affects the workplace, legal obligations and how to recognise signs of FDV in employees;
  • practical measures to improve employee safety such as appointing a specific person (in a senior role) as the contact person if domestic violence issues arise;
  • conducting regular wellbeing “check ins” with all staff working from home, particularly those who are identified as being vulnerable or at risk of domestic violence; and
  • reminding employees of any available employee assistance programs they can contact while working from home.

HR Legal in conjunction with Gallagher Workplace Risk, will be delivering a workshop on Managing Family and Domestic Violence in the Workplace. Information about this workshop will be provided in due course.

Source: Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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