Written by: Donna Kirk – Pro Leaders AcademyDevil is in the Detail

Regardless of where you work, an Employer has a legal obligation to provide a safe working environment for staff. If this is not provided and an incident occurs, there can be serious implications such as financial penalties for the Employer/business.

This was highlighted recently in an appeal from the NSW Supreme Court which ruled an employer be held responsible for family violence when staff was working from home. The decision was the final appeal over a workers’ compensation claim by the children of a woman killed by her de facto partner while working from home in 2010. The Employer was ordered to pay $450,000.

In this case, there were very strong ties between the offender and the victim within the workplace which may seem unlikely to occur in our own workplaces. However, we need to be mindful of such occurrence because the devil is in the detail with the Work Health and Safety Act 2011 clearly stating that an Employer is responsible for the health and safety of workers and workplaces.

COVID-19 has forced many employees to work from home potentially putting both themselves and their employers unknowingly at risk because, simply put, Health & Safety is about more than just providing personal protective equipment.  It is not just about ergonomics or what you need to make it a good working environment at home, it is about RISK in whatever form that takes.

The argument that ‘what happens behind closed doors is a private matter and we shouldn’t intrude’ isn’t as clear as it perhaps once was, as domestic and family violence is a problem for the whole community and we all have a level of responsibility even as Employers and colleagues.

Here are a number of questions we encourage you and your staff discuss in regard to WH&S and specifically Working From Home:

  1. Have you asked and received back from everyone currently working from home a WH&S checklist to declare their home is safe to use as a work environment?
  2. Do you feel confident or do you have any doubts that your team can work from home safely?
  3. Have you provided options for people who may not be able to work from home for unspecified reasons?
  4. What measures do you have in place to demonstrate your organisations responsibilities under the WH&S Act covering people working from home?
  5. How, if at all, are you able to raise the subject of Domestic Violence as a risk with your teams?

So, what can be done?  With input from our own legal team here are some suggestions:

  • Review your current WH&S processes with a wider lens that is not just the physical location. Have the discussion, be sensitive and be aware. Working From Home isn’t suited to everyone irrespective of COVID-19.
  • Seek certified service providers to perform a tag and test of all appliances and RCD equipment and obtain a Tag and Test Certificate of Compliance to ensure that the home environment is safe.
  • Create and/or update any WFH checklists to include a section called Resilience, because this should alert staff to the topic without being offensive or intrusive. Provide an introduction such as the following:It is important you are able to reflect on the nature of your home working environment objectively and assure your manager that the environment is safe for your continued flexibility in working from home. If you ever feel unsafe in your home environment while doing your work, you should raise that immediately with your manager.
    • You feel safe in your home environment;
    • You feel confident that you are able to cope with any stressors in the home environment;
    • You feel confident in requesting and obtaining support from the office while working from home. 

Our role as Employers and Managers is evolving and it is important that we are able to tackle tough conversations adequately protecting not just the organisation, but the people who work for us.

Read the appeal details of the case https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2020/54.html.