Background
On 18 October 2024, Auxiliary Deputy President Magistrate Carrel of the South Australian Employment Tribunal handed down her decision in Lauren Vercoe v Local Government Association Workers Compensation Scheme [2024] SAET 91.
Ms Vercoe, an employee of the City of Charles Sturt (Council), injured herself on 19 September 2022 when she tripped over a metal pet fence while working from home. Ms Vercoe had temporarily erected the fence as a barrier to the sunroom in her home, which she was using as a home office.
In a decision dated 19 October 2022, the Local Government Association Workers Compensation Scheme rejected Ms Vercoe's claim for compensation for right shoulder and right knee injuries said to have been sustained from the fall, on the basis that it was not satisfied Ms Vercoe's employment was a significant contributing cause of her injuries.
Like other workers' compensation schemes across the country, for an injury to be compensable under section 7(2) of the Return to Work Act 2014 (SA) (RTW Act), the injury must arise "out of or in the course of employment and the employment was a significant cause of the injury".
Ms Vercoe subsequently applied to the South Australian Employment Tribunal, where Magistrate Carrel found that Ms Vercoe's injuries were compensable.
The decision
Magistrate Carrel agreed with Ms Vercoe's argument that the fall occurred during employment, even though it was at her home and not at her desk. This is because the RTW Act contemplates that an injury sustained during an authorised break is compensable and Magistrate Carrel accepted evidence that Ms Vercoe fell over the pet fence when exiting her sunroom on a coffee break. It was said that the Council encouraged and expected employees to take breaks while working from home.
Second, it was accepted that Ms Vercoe’s employment was a significant contributing cause of her injuries, because an existing feature of her place of employment (i.e. the pet fence) caused her to fall. It was not to the point whether the Council provided or knew about the pet fence as, according to the Magistrate's judgment, "there is nothing that limits the application of the workers' compensation scheme by reason of an injury occurring due to a feature of the workplace not known or authorised by an employer".
On this basis, Magistrate Carrel held that the injury was compensable according to section 7(1) of the RTW Act, as the pet fence, which was a significant cause of her injuries, was a physical workplace hazard meeting section 7(2).
It is important to note that this is a workers' compensation claim subject to a "no fault" scheme, which does not require proof that an employer has failed to meet its safety duties for providing and maintaining safe working environments in order for compensation to be payable.
However, in her judgment Magistrate Carrel noted that while the Council's "working from home checklist" was required to be completed by its employees and demonstrated the Council's attempt to guard against work health and safety risks arising from home-working, it had otherwise "abrogated all responsibilities for providing and maintaining a safe environment when working from home to Ms Vercoe".1
How can employers mitigate safety risks in WFH environments?
Magistrate Carrel's commentary does not suggest what other measures the Council could, or should, have implemented to mitigate safety risks and ensure that Ms Vercoe had a safe working environment. Indeed, despite a significant increase in the volume of people working from home on a regular basis since the COVID pandemic, there remains very limited published guidance material to assist employers to ensure a safe home working environment for their employees. This is to be expected, given that employers only have a limited ability to control and influence the home office environment of its employees.
The decision in this particular case should not invalidate checklists as ineffective in assisting employers to ensure their employees are working safely at home. Indeed, checklists represent one of the few measures available to employers to assist in ensuring that workers' home offices are safe. For instance, checklists are recommended by Safe Work Australia in its "Working from home - PCBU information sheet".2
Despite the significant increase in employees working from home there have been no prosecutions of employers for failing to ensure, so far as reasonably practicable, the safety of their employees working at home.
We recommend that employers continue to use and regularly review employee checklists as part of their broader initiatives to identify work-from-home hazards. In addition, we recommend that employers, amongst other things:
- provide advice to employees regarding the ergonomic set-up of home workstations
- provide, where appropriate, suitable equipment for employees to use at home (i.e. headsets or monitors)
- regularly check in with employees working at home
- ensure employees have access to first aid and know what to do in the case of an emergency.
Employees should be encouraged to notify their employers of additional hazards identified in the home workplace so that appropriate controls can be implemented to reduce the risk of injury. Depending on the work to be undertaken and the risks associated with working at home, in some circumstances employers may decide that it is not appropriate to allow an employee to work from home.
Employers should also bear in mind that whilst they may be doing everything that is reasonably practicable to ensure a safe work environment for their employees when they are working at home, they may still be liable for injuries that occur at employees' homes where those injuries arise out of, or in the course of, employment.
For more information on your obligations in regards to workplace safety and how to mitigate risks in work from home environments, please contact our experienced workplace safety experts.
1 Lauren Vercoe v Local Government Association Workers Compensation Scheme [2024] SAET 91 at [103].
2 Safe Work Australia, Working from Home - PCBU information sheet.
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