A recent AAT decision reminds employers that claims for accidents at home can be brought by employees who are permitted or encouraged (explicitly or implicitly) to work from home. In this update we look at that decision and review two older decisions, all of which explore the blurred line between the workplace and home. Employers need to balance the challenge of increasing exposure to claims on the one hand and the merits and benefits of flexible work practices on the other.
Hargreaves and Telstra Corporation Limited  AATA 417 (17 June 2011)
Dale Hargreaves worked for Telstra. Her role included campaign management and reporting. Each week she worked two days from home and three days in Telstra's city office. Telstra provided Ms Hargreaves with equipment such as a laptop computer, cabling and a mobile telephone. She had access to the internet and Telstra's computer system, at Telstra's expense.
On 21 August 2006 she fell down the stairs at home and injured her left shoulder. On 9 October 2006 she again fell down the stairs and again injured her shoulder, this time requiring surgery. She later developed depression and anxiety which she claimed was related to the physical injuries and her inability to work. Telstra denied liability for the injuries on the basis that the falls did not arise out of, or were not in the course of, her employment. This case was not concerned with the safety of Ms Hargreaves' home, whether the stairs themselves were dangerous or whether her own negligence contributed to the fall. The issues before the Tribunal were whether:
- Ms Hargreaves' physical injuries arose out of, or in the course of, her employment with Telstra for the purposes of s 4(1)(b) of the Safety, Rehabilitation and Compensation Act 1988
- she suffered a psychiatric ailment to which her employment contributed in a material degree.
Ms Hargreaves gave evidence that on both occasions when she fell down the stairs she had been logged onto Telstra's computer system and had got up from her work station to go downstairs. Both times she fell down the stairs she coughed and lost her balance. On the first occasion, she was going downstairs to get cough mixture. On the second occasion, she was going downstairs to lock her front door after her son had left for school. Telstra had instructed to her to make sure her front door was locked while she was working as there had been a burglary in her local area the year before. The Tribunal found the physical injuries arose out of Ms Hargreaves' employment. In relation to the first fall, the Tribunal accepted that:...had been instructed by a senior officer of the respondent to keep the screen door of her house locked during the day when she was working from home, and that this requirement became part of her obligation or an incident of her employment and had not been altered or rescinded. The Tribunal finds that she had been complying with this instruction when she left her workstation at about 8.40am to lock the screen door when her son was leaving the house to go to school, and that her action was within the scope of her employment.
In relation to the second fall, the Tribunal accepted that Ms Hargreaves:
...had been instructed by a senior officer of the respondent to keep the screen door of her house locked during the day when she was working from home, and that this requirement became part of her obligation or an incident of her employment and had not been altered or rescinded. The Tribunal finds that she had been complying with this instruction when she left her workstation at about 8.40am to lock the screen door when her son was leaving the house to go to school, and that her action was within the scope of her employment.
The Tribunal also found that Telstra was also liable to pay compensation for her psychiatric condition.
The Tribunal's analysis followed existing authority that, for an injury to have arisen out of employment, it did not necessarily have to occur at work. The Tribunal applied existing authority that liability may exist for injuries that occur while 'relieving necessities of nature' such as while on a refreshment or toilet break. The Tribunal therefore saw Ms Hargreaves' first fall as akin to a toilet or meal break, given she needed to get cough syrup to continue her work. Presumably the outcome would have been different if she was descending the stairs to, for example, attend to a child or to water the garden. In relation to the second fall, once the Tribunal accepted that Ms Hargreaves had been directed by her superiors to lock her screen door when working from home, her injury was found to occur whilst in the process of carrying out a requirement for work. We would expect a different outcome in the absence of that finding of fact and Ms Hargreaves had simply been seeing off her son to school.
Ledwidge and Optus Administration Pty Ltd  AATA 58 (22 January 2008)
Arthur Ledwidge worked for Optus as a Customer Field Services Technician. On Sunday 8 January 2006, Mr Ledwidge injured his back while he was organising the interior of his employer-provided van for the coming week. Mr Ledwidge said that he usually spent time on a Sunday organising his vehicle for the following day's work. He said that he cannot work in a messy vehicle as it makes it harder to get the job done. He said that he did not tidy the vehicle every Sunday but did so quite often.
Mr Ledwidge's evidence was that Optus, through its team leaders, encouraged the technicians to keep their vehicles clean and tidy. He said that at team meetings, the team leader would often comment on the appearance of the vans. The employees were not required to clean their vans outside hours, however team leaders knew of this practice and implicitly encouraged it. There was no directive that employees were not to do so on the weekend.
The Tribunal accepted that the field technicians' vans and the supplies within them were part of their workplace. Furthermore, the Tribunal found that Mr Ledwidge was engaging in an activity he was reasonably expected to do in relation to his employment, namely organise his van so that he could work efficiently. Accordingly, the Tribunal found that Mr Ledwidge's aggravation of his back injury arose out of, or in the course of, his employment.
Janus and John Holland Group Pty Ltd  AATA 951 (11 December 2009)
Udo Janus was a boilermaker employed by John Holland Group. On the afternoon of 24 August 2008 Mr Janus was at home getting ready to start work on the afternoon shift at 4 p.m. As he bent over to put on his work boots he felt severe back pain. His employer supplied work boots and he was required to wear them before he got on the bus to travel to the work site and while at work.
The Tribunal rejected the contention that the putting on of boots at home before work was required. The Tribunal accepted that Mr Janus' supervisors at John Holland were aware that employees like Mr Janus were putting their boots on at home rather than at the car park and, in that way, might be said to have tolerated that practice. However, the Tribunal was not satisfied that John Holland could be said to have expected its employees to do so.
What was required and expected was that employees would wear safety boots when they boarded the bus. There was no requirement or expectation that they put their boots on any earlier. The Tribunal distinguished the facts of this case from Mr Lewidge on the basis that Mr Lewidge had been engaged in activity he was reasonably expected to undertake, whilst Mr Janus was not.
- The principles in relation to the taking of necessary breaks such as refreshment or toilet breaks apply regardless of whether the employee is at work or carrying out work duties at home. Determining factors for injuries at home will include the nature of the break, whether work had been commenced prior to the break and whether the employee was intending to return to their work immediately after the break.
- Even if employers do not expect certain duties to be carried out at home and out of hours, they can still be liable if their employee is injured in the process of carrying out those duties. If the duties are expected to be performed at some time, and there is a practice of those duties being performed at home and out of hours, then the carrying out of those duties will arise out of, or be in the course of, employment. Hence, employers may be liable for home accidents, even when there is no formal arrangement for working at home.
- Equipment provided by an employer such as a van or computer workstation constitutes part of the workplace. As such, employers may be liable for injuries arising out of the use of that equipment, even when at home and out of hours.
Emily Baggett Solicitor Litigation & Dispute
Tel +61 2 9286 8546
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