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Employers held responsible for domestic violence when staff WFH

8th Oct 2020

In June, the NSW Court of Appeal found that employers can be held responsible for domestic violence when employees work from home in Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54.

In this case a woman was killed by her de facto partner in 2010 when the couple were both working from home for their family business. An earlier decision in the Worker’s Compensation Commission, found that the man’s attack was due to paranoid delusions. He was charged with murder, but found not guilty due to mental illness.

The woman left two dependent children, a teenager and a baby. The children brought claims for workers’ compensation. The claim was resisted by the Workers Compensation Nominal Insurer on the grounds that the family company had long since been deregistered. The court ultimately ruled against the insurer’s appeal.

In 2018, the Workers Compensation Commission (WCC) determined that the mother had died as a result of injury arising out of, and in the course of, her employment. The WCC ordered the insurer to pay $450,000 in favour of the two children in accordance with workplace injury law.

The WCC found that the man had irrationally believed his de facto partner was conspiring to ruin his reputation and business, had spied on him, and was unfaithful. At one point he even put her through a lie detector test.

The insurer argued on appeal that the woman’s death did not occur in the course of her employment, given that she was killed in her bedroom before work at 9am and she was still in her pyjamas.

Under s9A of the Workplace Injury Management and Workers Compensation Act 1988 (NSW), no compensation is payable unless employment is a substantial contributing factor to the injury.

The WCC dismissed the appeal, considering that the victim often worked from home outside regular work hours, her bedroom contained work files, and the police determined that her death occurred between 8am and 10am.

The NSW Court of Appeal ruled in favour of the WCC’s decision. The court found a ‘direct connection’ between the man’s delusions, the woman’s employment, and the harm she suffered.

Ensuring a safe WFH environment

This case demonstrates that workplace health and safety doesn’t apply only to ergonomic chairs and proper lighting. Employers must, by law, provide a safe working environment for their staff and should ensure that there are no safety risks involved with working from home. Such risks include the threat of domestic violence.

It is important that managers make sure that their staff feel comfortable telling them if they don’t feel safe working from home, even if they don’t want to give details. Employers should also develop policies that will assist employees to communicate if they are at risk of being subject to domestic violence when working from home.

Domestic violence and COVID-19

Troublingly, domestic violence has risen significantly during the COVID-19 lockdowns, with a shocking number of women and children subjected to harm, as well as a smaller number of men.

The Medical Journal of Australia estimates that between 19% and 25% of women will be subject to domestic violence in their lifetime. The Australian Institute of Criminology reports that on average of more than one woman per week is killed by a partner or former partner in Australia. A recent survey by the Institute found that almost one in ten women in a relationship has suffered domestic violence during COVID-19. Between February and May 2020, 8.8% of women in a relationship were victims of physical or sexual violence.[1] For one-third of these women, it was the first time they had experienced violence in their relationship.[2]

The NSW BOCSAR reported a 4.1% cent rise in domestic violence in the past two years, with some parts of Sydney including Sutherland, Baulkham Hills and Hawkesbury reporting increases of over 30%. Similarly, Monash University found that 60% of domestic violence support practitioners have reported an increase in violence against women since COVID-19 lockdowns began.

These distressing domestic violence statistics highlight the need for businesses to become better informed and more proactive in implementing policies that will protect their workers, particularly with more employees working from home due to COVID-19.

This is an edited version of an article first published at Stacks Law.

Emily Wittig is a lawyer at Stacks Collins Thompson in Hornsby with over two years’ post-admission experience. She has a particular focus on employment law, having spent over two years prior to her admission working in employment relations, in both federal and state jurisdictions. She previously worked as a Fair Work inspector for the Fair Work Ombudsman, and as an employment relations adviser for the Motor Traders Association of NSW. Emily volunteers as a solicitor at a community legal centre and enjoys helping people who have been taken for granted by their employer.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: NSW Workers compensation Domestic Violence