Employees working from home?

Employees working from home and employer’s liability

Are you looking for ways to limit employer liability when your employees work from home?

Flexible work place arrangements are increasingly common with many workers now performing work duties from home. Accidents and injuries are inevitable depending on the nature of the work, there are ways for employers to reduce or limit their liability.

Employers should do the following in clear written terms of agreement:

Place limits on the scope of when the employee is employed by specifying the days and hours when the employee is “at work” and when they are not;

Require the employee to maintain a log book recording their time of commencement of work and when they stop for lunch and stop for the day. The log should contain a section in which the employee can record any incidents that occur during the work day;

Require the employee to notify you via email when they commence work for the day, when they stop for lunch and stop for the day;

Place limits on the additional tasks that the employee can undertake as part of their employment when they are working at home;

Formally restrict the parts of the employee’s home which are recognised as their actual “home-based work place” so that the rest of their house is not;

Clearly stipulate the employee’s primary duties in a way which restricts the types of activities that will be found to be incidental to their employment; and

Recognise and address any additional risks that exist – for example, if the employee wishes to work from home because they have recently had a baby, ensure your agreement clearly reflects for both parties what are the expectations regarding the care to be provided to the child and the tasks to be performed.

Employers should address the following:

Does their policy of Workers Compensation insurance provide coverage for work places in the home?

Does the employee have a policy of insurance that covers accidents in the home while working?

Is the home based work area OH&S compliant? Issues such as whether there is a First Aid kit, safety manual or functioning smoke alarm may need to be addressed.

An effective way of documenting the condition of the workplace is by requiring the employee to complete a safety check-list which contains these requisite OH&S items and others. Depending on the nature of the work, employers should consider completing a routine inspection of the employee’s home office or work space, and place obligations on the employee to comply with directions and maintain particular conditions.

Case Study

Our client was a qualified child carer working for a Not For Profit organisation providing child care services in the home. Up to four children would be cared for in her home. Lifting injuries are common in the child care industry however, Elringtons’ client was aware of proper lifting practices particularly with young children who can sometimes be difficult to handle when upset.

On a rainy day, our client had safely lifted up a 20 kg, 5 year old child who was in her care. At the same time, another small child ran past her from the room where the children were usually minded, into the back yard which was wet and slippery. Our client tried to follow the darting child into the back yard whilst still holding the 5 year old when she slipped on wet paving and fell. She successfully turned her body to one side to save the child she was holding but injured herself in the process.

Elringtons successfully acted for the child carer on the basis that is was an inevitable accident whilst performing work in the home. The injuries were significant, affecting the child carer’s ability to work in the future Our client received workers compensation coverage from the Not For Profit organisation’s insurer for her injuries.

Conclusion

The above suggestions are, depending on the circumstances, likely to reduce an employer’s liability for a worker’s injury claim. In some circumstances however, inevitable accidents occur and it is imperative that employers, who provide flexible work place arrangements where work is conducted in the home, ensure that their insurance arrangements provide adequate cover

For advice in relation to your obligations as an employer, or your rights as an employee, please contact Matthew Bridger:

e: mbridger@elringtons.com.au | p: 02 6206 1300

More Reasons to keep your Workplace Safe

The Work Health and Safety Act (WHSA) came into effect on 1 January 2012 resulting in changes to Occupational Health & Safety (“OH&S”) law in Australia. All ACT and NSW businesses need to be aware of these changes.

Changes

Firstly, the WHSA extends the employers’ duty of care beyond the traditional employer-employee relationship.

The duty is broad and is imposed on any person conducting a business or undertaking –therefore covering not only employees, but also contractors, labour-hire workers and apprentices (‘Workers’).

Secondly, if there is a breach, the prosecution must prove that the business owner did not take all reasonable measures to prevent the risk of injury to Workers.

Thirdly, business owners (including officeholders in a corporation or unincorporated organisation and partners in a partnership) must exercise due diligence to ensure that the business complies with its OH&S obligations.

This means that unless an officer of the business exercises due diligence, he or she may be liable for any contravention of the WHSA.

Obligations

Due diligence requires more than the conventional physical review.  Each business owner must:

  • take reasonable steps to keep up to date knowledge of OH&S matters;
  • understand fully the nature and operations of the business and the associated risks to Workers;
  • ensure that appropriate resources to minimise or eliminate hazards to Workers are available and utilised;
  • ensure the business has processes for receiving and considering information about incidents and hazards and responding in a timely manner; and
  • ensure the business has, and implements, appropriate processes for complying with its obligations under the legislation

A consequence of this is that an owner may be liable for failing to exercise due diligence despite the fact that the business itself is complying with its obligations, or without an incident in the workplace even occurring.

Additionally, business owners must consult with all Workers about OH&S matters, as far as reasonably possible.

Offences

There are now three categories of offences: Category 1 offences are the most serious, involving recklessness and exposing an individual to the risk of death or serious illness. Category 2 offences occur where a person is exposed to a high level of risk of death or serious injury, but without recklessness. Category 3 offences are breaches without a high risk of serious harm and without recklessness.

Breaches of the WHSA can result in up to 5 years imprisonment and/or penalties between $50,000.00 and $3,000,000.00. Given the significantly increased penalties under the WHSA, employers should acquaint themselves with these new developments.

For advice, please contact:

Matthew Bridger | e: mbridger@elringtons.com.au | p: 02 6206 1300 http://elringtons.com.au/wp-content/uploads/2011/07/Specialist-accreditaion.jpg

This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this publication without first obtaining specific professional advice.

It is the employer’s obligation to provide a safe workplace

The Queensland Court of Appeal has upheld a trial judge’s decision to award $420,000 in damages to an employee who slipped on an office chair on top of a slippery mat.

Background

The Plaintiff worked in an office cubicle using a chair on castors and was instructed by her employer to place a plastic mat under the chair. The mat was very slippery and, according to a fellow employee, would “just flick out from under you”. The Plaintiff and another employee complained to the officer manager that the mats were “dangerous and hazardous” and ”so slippery”, but were told management wanted them there.

The accident occurred when the Plaintiff, after standing up to retrieve a book from the shelf above, started to sit back down on the chair. However, the chair had moved while the Plaintiff was standing and she instead fell to the floor fracturing her sacrum.

The trial judge awarded the Plaintiff $420,000 in damages, which the Defendant appealed in its entirety or, alternatively that the award should be reduced.

Decision

Although the defendants argued that the mat didn’t cause the plaintiff to fall, and the injury sustained was the plaintiff’s fault, the court held that there was not enough evidence to prove the defendants claim.

The Court held that there was no basis to interfere with the Trial Judge’s findings that the Defendant was liable should be affirmed and the assessment of the plaintiff’s damages rejected.

Lesson

It is the employer’s obligation to provide a safe workplace, a reasonable employer ought to have regard to complaints or express notifications made by employees as to the safety of equipment they are directed to use in the course of their employment.

Employers must, so far as is reasonably practicable, provide employees with safe systems of work.

They must also ensure:

  • the provision and maintenance of a work environment that is without risks to health or safety
  • the safe use, handling-including transport-and storage of plant, structures and substances
  • the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking
  • the provision of, and access to, adequate facilities for the welfare of workers at the workplace, and
  • the health of workers and the conditions at the workplace are monitored for the purpose of preventing work-related illness or injury. [1]

In order for an employer to meet their obligations, they must investigate all safety complaints made by employees.

If you have been injured, please contact:
Matthew Bridger | e: mbridger@elringtons.com.au | p: 02 6206 1300 http://elringtons.com.au/wp-content/uploads/2011/07/Specialist-accreditaion.jpg

[1] Work Health and Safety Duties – Safe Work Australia

Note: This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this publication without first obtaining specific professional advice.

OHS on Construction Sites

In the wake of recent construction site catastrophes in the ACT, notably the partial collapse of the Gungahlin Drive Extension bridge, senior construction company officers should be reminded of the duty of care that is owed to their employees in regard to occupational health and safety (“OHS”).

A recent decision in the Victorian Court of Appeal is a perfect example of the severe consequences that senior officers may face where OHS standards have waivered.

Background:

In Leorke v The Queen, Mr Leorke was a Director of Permanent Erection Constructions Pty Ltd. This company had been retained to undertake an extension and renovation project of the first floor of an existing building. Throughout this project, Mr Leorke also held the position of site supervisor. During the course of the project, building materials were loaded onto the partially completed first floor of the building. Due to poor support and reinforcement a beam buckled, causing the building materials to fall through to the ground floor. The collapse resulted in one fatality and injuries were sustained by another worker.

Mr Leorke was prosecuted under s 21 Occupational Health and Safety Act (2004) for failing to ‘provide and maintain a safe working environment’. This charge was based on the failure of Mr Leorke to engage an engineer to ensure that loading materials onto the first floor was safe.

Mr Leorke was convicted and fined $60,000 for his breach of the Act.

Companies and officers of construction companies should be warned however that penalties for breaches of OHS requirements will significantly increase upon the nationwide introduction of the Work Health and Safety Act (“the Act”) at the beginning of 2012.

For example, reckless breaches which occasion serious injury, illness or death may incur penalties of up to $600 000, five years imprisonment or where it is deemed appropriate, both penalties will be imposed.

The imposition of criminal penalties seeks to highlight the government’s belief in the importance of OHS in all workplaces.

Since construction companies are particularly vulnerable to the occurrence of workplace injury and death, it is important for them to begin reviewing their OHS standards and procedures to ensure compatibility with the new OHS standards.

If you wish to discuss how the current OHS legislation or the impending Work Health and Safety Act will affect your workplace, please contact:

Matthew Bridger | e: mbridger@elringtons.com.au | p: 02 6206 1300 http://elringtons.com.au/wp-content/uploads/2011/07/Specialist-accreditaion.jpg