Having employees work from home or off-site is becoming more and more popular for many Australian startups. Over 3.5 million Australians regularly work from home according to the Australian Bureau of Statistics. Some of the benefits include less overhead, happier staff and more flexibility. But just because your employee is working from home does not mean that you are not required to comply with your Work Health and Safety Requirements. A recent case of Demasi and Comcare (Compensation) [2016] AATA 644 (‘Demasi and Comcare’) highlights some of these issues. We explore this case in more detail below and provide some key takeaways for employers with employees who work from home.

Work From Home Obligations of Employees and Employers

Importantly, if your team work from home on a regular basis, you should know that your work health and safety obligations under the Work Health and Safety Act 2011 (Cth) (or equivalent in your state/territory) extend beyond your physical office space.

It is also essential that employees understand their obligation to assist you in making sure that their workspace is suitable. Some steps to assist with this could include:

  • Providing your employees with a checklist to assess their workspace;
  • Workplace policies that address a home office space; and
  • Advising them that they must notify you promptly if they are injured at their home office.

You should ensure that you not only address the issue of physical health and safety but also address the psychological health and well-being of your employees that work from home. The obligation to provide a safe work environment also extends to the psychological welfare of the employee.

If your employee is working from home, it may be harder to monitor how they are feeling or if they are being bullied or intimidated by other staff. Regularly check-in with your staff that work from home to make sure that you have not put them in a situation that may cause psychological harm. More broadly to ensure the successful running of your startup and working with your off-site employees, you should encourage where possible opportunities for them to interact with their colleagues in person.

What Can We Learn From Demasi and Comcare?

If an employee injures themselves at their home office during their work, then the employer will likely be required to cover this. This liability may extend to the employer if even the activity the employee was undertaking is not related to the work they do as part of their role.

In the recent case of Demasi and Comcare, Ms Demasi, an ABC presenter at the time, was going for a jog during the morning when working from home and injured her hip.

The insurer Comcare rejected the claim and argued that the injury didn’t arise as a result of the employee’s work, or in the course of the employment and therefore they were not liable to pay.

Ms Demasi appealed the decision to the AAT. The AAT rejected the application for an appeal and held that Ms Demasi did not sustain the injury while she was at her place of work or was temporarily absent from work during an ordinary or authorised recess.

As part of its decision, the AAT considered what an ‘ordinary recess’ was. It held that going for a jog during the morning once work had commenced was not an ordinary recess, as, for example, a coffee run or a lunch break would be.

Although this case specifically addressed the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘SRC Act’), which applied to ABC employees, it still provides valuable guidance on how work from home injuries are viewed and assessed.

Was the Work From Home Policy Relevant?

Although the ABC had a formal policy and process of having employees working from home, this was not followed by Ms Demasi. The Court held that the non-compliance by Ms Demasi was not a defence that the employer could rely on. An important reminder that policies are only as good as the processes and enforcement which support them.

Was the Home Office a Place of Work?

This case also considered the issue of whether Demasi’s home was a workplace for assessing whether the injury took place during her work. Although Ms Demasi working from home was not a formal arrangement, her working from home that day had been approved by her manager, and there was an understanding that working from home was an option. The AAT held that she was at her place of work.

Was the Injury Sustained During an Ordinary Recess?

Another important issue the AAT considered was whether the taking of the break to go for a jog was an ordinary recess. The AAT considered the timing of the break and held that had Ms Demasi had taken the jog at lunch, then it would have been considered an ordinary recess.

Key Takeaways

Startups should be aware of the risks they may be exposing themselves to concerning compensation claims or breaches of the Work Health and Safety Act 2011 (Cth). Moreover, any policy should be integrated into the approval of employees to work from home. You should openly communicate with your employees about their home offices and any concerns that they may have.

A few simple steps before bringing on work from home employees can reduce issues later on. If you have any questions or need assistance drafting any policies that may help protect your business, get in touch with our employment lawyers today on 1300 544 755.

Edith Moss

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