Worker’s compensation awarded to employee following dog sitting injury

In a recent decision of the South Australian Employment Tribunal (SAET) in Lauren Vercoe v Local Government Association Workers Compensation Scheme [2024] SAET 91, Auxiliary Deputy President Magistrate Carrell held that a local government employee, who was injured while working from home, was entitled to compensation in a claim against the Local Government Association Workers Compensation Scheme (the Scheme).

Facts

The Applicant, Ms Lauren Vercoe, was an employee of a local government council (the Council) as an Asset Programmer/Operations Programmer on a full-time basis since 2012.

Ms Vercoe, in performing her duties at the Council, had received permission to work from home from time to time.

On 19 September 2022, Ms Vercoe had commenced work from her home office, so that she could look after her colleague’s dog.

The day prior, Ms Vercoe had erected a 60cm high metal pet fence in the doorway of her sunroom, for the purpose of keeping the dog away from her pet rabbit.

While working from home, Ms Vercoe left her home office to make a cup of coffee. Ms Vercoe submitted to the Tribunal that this was a standard activity throughout her working day. This activity was consistent with the Council’s practice of encouraging employees to take regular short breaks away from their workstations.

As Ms Vercoe took her coffee break, Ms Vercoe was required to step over the pet fence erected in the doorway of her sunroom to reach her kitchen. In doing so, her left foot caught the top of the pet fence, causing her to fall. As a result, Ms Vercoe suffered from a fractured shoulder and injury to her right knee. Ms Vercoe was subsequently taken to hospital for treatment.

Ms Vercoe then submitted a claim for compensation with the Scheme, for her injuries sustained from the fall.

In the first instance, the Scheme rejected Ms Vercoe’s claim for compensation arising from her injuries sustained in the fall, on the basis that the Scheme was not satisfied that Ms Vercoe’s employment was a ‘significant contributing cause of her injuries’.

Ms Vercoe then appealed this decision of the Scheme in the SAET.

Decision

The key issue in consideration for the Tribunal was whether Ms Vercoe’s injuries arose out of employment within the meaning of section 7 of the Return to Work Act 2014 (SA) (RTW Act).

Section 7 of the RTW Act provides that an injury arises from employment if, in the case of physical injury, ‘the injury arises out of or in the course of employment and the employment was a significant contributing cause of the injury’.

Relevantly, the RTW Act provides that a ‘worker’s employment’ includes ‘attendance at the worker's place of employment during an authorised break from work’ and a ‘place of employment’ means ‘a place where a worker is required to carry out duties of employment and, if the place is a building, includes land within the external boundaries of the land on which the building is situated’.

Therefore, it needed to be considered whether the fall, resulting in the injuries sustained, arose in the course of Ms Vercoe’s employment and whether the employment significantly contributed to the injury.

There was no dispute between the parties that Ms Vercoe was performing work and did so from home. Accordingly, the place of her employment was her home.

The SAET held that an existing feature of her place of employment was the pet fence she had erected across the doorway of her sunroom. In the view of the Tribunal, this created a hazard, of which, was the only cause of Ms Vercoe’s injuries.

The Council’s lack of knowledge of the dog fence did not preclude the Tribunal’s finding that the hazard amounts to an employment-related cause. The Tribunal found that the physical workplace hazard, the fence, was a significant contributing cause of Ms Vercoe’s injuries. Accordingly, the injuries sustained by Ms Vercoe arose out of her employment.

Notably, the Council had, as part of its working from home arrangements, required employees complete a ‘Working from Home’ checklist. The Tribunal noted that the checklist in this case revealed that Ms Vercoe was asked to assess her ‘workstation layout, her work area, and environment and emergency management. Specific questions included adequate space, smoke detectors, first aid kits, adequate lighting and air flow, supervision of children under school age, and whether noise levels were challenging.’ The Tribunal held that the checklist demonstrates the Council’s attempt to guard itself from work health and safety (WHS) risks, but in all other respects, had ‘abrogated its responsibilities’ for the ‘provision and maintenance of a safe working environment when working from home’.

Take Home Messages

Although work from home arrangements have gained widespread acceptance from employers and employees alike, the outcome of this case highlights the inherent risks employers face when permitting employees to work in locations outside of their usual business premises.

It is clear that even if an employer has no knowledge of an employee's working environment and potential surrounding hazards, they may still be held liable for the injuries sustained by the employee, even in instances where the hazard was created by the employee themselves.

Employers who permit working from home arrangements should be mindful of this very real risk. As such, employers should consider reviewing their work from home policies and procedures to reflect such risks. Additionally, we recommend employers review any existing WHS procedures and practices, with particular attention to be paid to potential hazards employees may face in their own homes.

We also recommend employers should consider the introduction of greater control measures, including:

• Rules around breaktimes, and permitted areas and activities during breaks;
• A requirement for the employee to gain employer consent for changes to working arrangements or the authorisation of any potential hazards; and
• Conducting regular reviews of work from home arrangements.

Should you wish to discuss the matters raised in this article, please contact Lincoln Smith on + 61 8 8210 1203 or lsmith@normans.com.au, or Edward De Luca on +61 8 8210 1279 or edeluca@normans.com.au.