Article Summary
Under Australia’s harmonised work health and safety laws, an employer’s duty of care extends to employees working from home. Recent cases, including Local Government Association (City of Charles Sturt) v Vercoe, highlight that liability depends on whether the injury occurred in the course of employment and whether employment was a significant contributing cause.
Despite organisations and government departments rolling back work from home (WFH) availability, it remains a key element of many Australian’s work life. But if something goes wrong and an employee is injured at home while working…where does the liability lie?
Where is Work and Where is Home?
Australia has a harmonised framework of state and federal work health and safety legislation that ensures an employer’s duty to provide a safe work environment applies wherever work is carried out. In practice, this may extend to the physical and ergonomic set-up of a workspace, the systems and hours of work, and hazards that arise while an employee is performing their duties.
Importantly, an employer’s duty of care is not diminished simply because work is being performed from an employee’s home. This raises an important question for employers: how far does an employer’s responsibility and potential liability extend when an employee is WFH?
Case Study
The extent to which an employer may be responsible for injuries sustained whilst working from home was recently considered in Local Government Association (City of Charles Sturt) v Vercoe¹. An employee who was authorised to WFH had set up her workstation in the sunroom of her home. She was looking after a puppy and, to protect her rabbit from it, she installed a temporary fence approximately 60 centimetres high.
The fence was not approved or otherwise known to her employer and was entirely of her own doing. Whilst on an authorised and paid work break, the employee tripped on the fence, fell, and sustained injuries to her knee, shoulder and arm. You may be thinking that the injury was the result of an entirely personal and unapproved decision by the employee to install the puppy fence.
However, the initial decision of the South Australian Employment Tribunal did not agree. Liability was assessed by reference to two factors: whether the injury occurred during an overall course or episode of employment, and whether the employer expressly or impliedly induced or encouraged the employee to engage in the activity which caused the injury. In this instance, it was accepted that both elements were satisfied.
On appeal to the Full Bench, it was accepted that the injury occurred in the course of employment. However, the Tribunal was required to re-evaluate whether employment was a significant contributing cause of the injury. In this respect, it was held that the temporary and private purpose of the fence, together with the fact that the employee was on a break and checking on the puppy, failed to satisfy that requirement. While the employer ultimately avoided liability, the case remains an important reminder that once WFH is approved, an employee’s home environment may be treated as a workplace. Injuries arising from that environment, even where they stem from personal or domestic arrangements, can still give rise to work health and safety considerations.
Examples
The scope of an employer’s duty to maintain a safe working environment at home can be difficult to comprehend through legislation and guidelines alone. Below are three examples of whether an employer is likely to incur liability that may assist understanding.
Example 1
An employee sits at their WFH desk before their shift begins, eats breakfast there, and spills hot coffee on themselves. Liability here is unlikely. The employee was at their location of work, as instructed by their employer, but was outside work hours. Establishing that the employee’s actions were in the course of their employment may be difficult. This principle was addressed in Comcare v PVYW², with the High Court confirming the analysis turns on whether the activity is sufficiently connected to the employment, not whether the employee is at the place where work takes place.
Example 2
An employee, whilst on shift, leaves their desk for an authorised break and trips over a power cord and is injured. These facts are similar to CoCS v V¹, except the power cord was known to be part of the workstation. This situation would likely attract liability, as authorised breaks and movement around a workplace are generally considered to occur in the course of employment.
Example 3
An employee is WFH and leaves their home to run an errand for the business, but also decides to purchase a new pair of shoes for an upcoming meeting and is injured in the process. This situation is more complex. While the activity did not occur at the employee’s usual place of work and was not expressly approved, the injury occurred during a journey connected to the employment. In Oz Shut Pty Ltd v Hilton³, a minor detour to purchase a dress was held not to necessarily break the connection between an employee’s actions and actions undertaken in the course of employment.
What should you do now?
This article is not intended to discourage employers from permitting WFH arrangements. Instead, this article should be used to provoke consideration of potential issues or hazards that may arise in WFH arrangements.
Employers may wish to consider implementing or reassessing the following:
- Clearly defining the work area, work hours and expectations of a WFH employee;
- Requiring employees to conduct initial and periodic self-assessments of their workspace, including hazards and ergonomics;
- Providing training or information sessions to employees on safe WFH practices; and
- Creating a compliant and up-to-date incident report form for employees to complete if they are involved in an incident.
How We Can Help
If a WFH employee has been injured, or you are reviewing or implementing WFH arrangements, our Workplace Team can assist. Please feel free to contact one of our Workplace Team members for advice and support.
¹ Local Government Association (City of Charles Sturt) v Vercoe & Return to Work Corporation of South Australia [2025] SAET 135.
² Comcare v PVYW (2013) 250 CLR 246.
³ Oz Shut Pty Ltd v Hilton [2025] WADC 10.
For further information on this alert, contact Director Danny Clifford.
The assistance of Legal Assistant Hugh Jubb in the research for this article is gratefully acknowledged.
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