Can employers completely remove the risk of workers’ compensation claims?

As we enter the second month of a new year, and some of you are just returning to work (those who took holidays until Australia Day, save your gloating), we have been reflecting on workplace safety. Specifically, how can an employer ensure their employees stay safe when working from home?

You might recall a story that went viral towards the end of last year. It involved an employee who was compensated for tripping over a pet fence. If you need a refresher, our team wrote about it here. In short, a lady who was working from home erected a small fence in her corridor to prevent a friend’s puppy from meeting her pet bunny. During a coffee break, she tripped over the fence and was injured.

Despite her employer having no knowledge of the puppy, the bunny, or the fence, the worker was awarded compensation for her injuries. Cue: outrage that the employer could (albeit through its insurer) be liable for injuries that it could not possibly have foreseen. Maybe it’s the salty sea air still in our nostrils, but we have been thinking about this decision and hope to offer a fresh perspective.

Employers: you may never be able to completely remove the risk that your employees will be injured at work, and entitled to compensation for those injuries. As in the office, so it is when they work from home.

In our view, perhaps the most interesting part of the Vercoe decision [1] (aside from our love of any intersection between workplace law and puppies) is the reminder of the no-fault nature of workers’ compensation schemes. If a person is injured, and there is a sufficient causal link between their employment and the injury, most workers’ compensation schemes will provide that the injury is compensable. This will be the case even if the employer can demonstrate they took steps to mitigate the risk of injury.

In the Vercoe case, the employer had required its employees to complete a checklist about their home workstation, including whether they had adequate space, smoke detectors, first aid kits, adequate lighting and air flow, supervision of children under school age, and whether noise levels were challenging. These are good questions to ask, and Ms Vercoe completed the checklist. But, it did not stop her getting injured.

What if the employer had taken steps beyond just a work from home checklist; would they have been able to stop the employee being injured? Perhaps, although it’s still unlikely. And respectfully, it’s the wrong question to be asking. Why? Because, short of a site inspection at the employee’s residence on the morning of the injury, and offering training on how to step over small corridor fences, it’s doubtful the employer could have done anything to avoid this employee’s injury. In fact, even with that inspection and training, the employee may still have been injured; goodness knows, we all have clumsy days (me more than most!).

So, if an employer cannot guarantee that its employees will not be injured during work, where should the employer focus? They should focus on meeting their duties under Work Health and Safety laws. Employers’ duties under WHS laws exist whether employees work in an office, at a site, or from home. Those duties include ensuring employee safety, so far as reasonably practicable. These duties should be an employer’s focus.