by Emily Wittig Stacks Law Firm

The NSW Court of Appeal has ruled that employers can be held responsible for domestic violence when staff work from home.

In a June decision, the court ruled against an insurer’s appeal over a workers compensation case brought by the children of a woman who was killed by her de facto partner while working at home. (See Workers Compensation Nominal Insurer v Hill [2020] NSWCA54.)

This tragic event occurred in 2010 when the couple were both working from home for their family company, giving financial advice. An earlier court found the man’s attack was due to paranoid delusions. He was charged with murder, but found not guilty due to mental illness.

The mother left two dependent children, a teenage son and a baby just a few weeks old. The children made 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.

Workers Compensation Commission orders insurer to pay compensation

In 2018 the Workers Compensation Commission determined 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 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 appealed, arguing the mother’s death did not occur in the course of her employment, given that she was killed in her bedroom before work started at 9am and she was still in her pyjamas.

Court of Appeal finds the woman’s death and her employment to be directly linked

Under section 9A of the Workplace Injury Management and Workers Compensation Act 1988, no compensation is payable unless employment is a substantial contributing factor to the injury.

The WCC dismissed the appeal, saying she often worked at home outside regular work hours, her bedroom contained work files, and that the police found her death was between 8 and 10am.

The Court of Appeal ruled in favour of the WCC’s decision. The court found a “direct connection” between the man’s delusions, her employment and the harm suffered by her.

Employees working from home must have a safe working environment

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

It is important that managers make sure 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 impacted by domestic violence when working from home.

Domestic violence cases escalate during COVID-19 lockdowns

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 Australian Institute of Criminology reports that on average more than one woman per week is killed by a partner or former partner in Australia. A recent survey by the institute found almost one in ten women in a relationship has suffered domestic violence during the Covid-19 pandemic. (See The prevalence of domestic violence among women during the COVID-19 pandemic, AIC, July 2020.)

Between February and May 2020, 8.8 per cent of women in a relationship were victims of physical or sexual violence. For a third of these women, it was the first time they had experienced violence in their relationship.

The NSW Bureau of Crime Statistics and Research reported a 4.1 per 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 per cent. (See NSW Recorded Crime Statistics quarterly update March 2020, BOCSAR, June 2020.)

The Medical Journal of Australia paints a similarly grim picture, estimating that between 19 per cent and 25 per cent of women will be subject to domestic violence in their lifetime. (See Domestic violence in Australia: definition, prevalence and nature of presentation in clinical practice, MJA, September 2020.)

Elsewhere, Monash University found that 60 per cent of domestic violence support practitioners have reported an increase in violence against women since Covid-19 lockdowns began. (See Gender-based violence and help-seeking behaviours during the Covid-19 pandemic, June 2020.)

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.