Furry friends and legal fences - the curious case of the puppy, the rabbit, and workplace liability

A worker who was injured after tripping over a puppy fence while taking a coffee break at home has successfully claimed workers compensation in South Australia.

The decision of Vercoe v Local Government Association Workers Compensation Scheme [2024] SAET 91 brings to light the balancing act of maintaining employer responsibilities for employee safety while modelling modern-day remote working arrangements.

It is also an opportunity to remind employers that their work health and safety duties can extend to some unexpected places, including the home office environment.

In this article, we take a closer look at what happened in Vercoe, why the employer was found to be liable, and consider some of the broader risks employers need to manage when allowing employees to work remotely.

What happened in Vercoe?

The worker erected a 60cm metal fence across the doorway of her home to her home office, allowing her to babysit a colleague’s puppy while working from home on 19 September 2022.

The practice of taking coffee breaks was encouraged by her employer, who had guidelines promoting regular breaks and self-care during work hours. While she was working from home, the worker tripped and broke her right leg when she got up to make a coffee.

In ruling in favor of the worker, it was found the worker’s home was her place of employment and taking a coffee break was an authorised activity supported by her employer.

When considering the significant contributing cause of the injury, Magistrate Carrel found the pet fence, was a significant contributing cause of her injuries. While it was accepted the worker had not discussed the pet fence with anyone from the employer, the Magistrate found there was “nothing that limits the application of the workers compensation scheme by reason of an injury occurring due to a feature of the workplace not known or authorised by an employer”. In other words, a dispute based on the Council’s lack of knowledge regarding the pet fence would not suffice in disentitling the worker to compensation.

Could a decision like this happen in New South Wales?

The online discussions around the puppy fence case indicate it doesn’t pass the ‘pub test’. Most people are shocked by the outcome. It seems a stretch to many that an employer could have to compensate an employee for what the employee does in their own home.

Vercoe is a South Australian case. For employers based in NSW, it would be easy to assume that NSW may take a more common-sense approach in resolving a case like this. However, as the law currently stands in New South Wales we believe the same decision would be made.

Under the Workers Compensation Act 1987, the following tests apply to establish a compensable injury:

1.    the injury must “arise out of or in the course of” the worker’s employment; and

2.    employment must be a substantial contributing factor to the injury.

This test is identical to the test found in the Return to Work Act 2014 (SA) legislation.

In NSW, historical decisions have famously established that “the course of employment” can also include activities incidental to employment.

In Crawford v American Express Australia Ltd[1], the worker worked from home full time. Before starting work for the day, she made an iced coffee in her kitchen. She rushed downstairs to not miss her logon time; however, in doing so, she fell and injured herself. Her injury was determined to be compensable, despite it not being a direct work activity. The Workers Compensation Commission (as it was known at the time) found that the fact the worker was rushing to logon on time meant her employment was a substantial contributing factor to the injury.

Working from home and work health and safety risks: a broader problem for employers?

For employers who may be shocked by the outcome of Vercoe, they may be even more surprised to learn they can be criminally liable for injuries sustained in a home office.

Under the Work Health and Safety Act 2011 (NSW), employers have a statutory duty to ensure, so far as is reasonably practicable, the health and safety of workers engaged while the workers are at work.

This duty includes:

• the provision and maintenance of a work environment without risks to health and safety; and
  
  
• the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

Intuitively, an employer may think of the work environment or workplace as being limited to where the employer ordinarily conducts their business (so, for example, an office building). But the WHS Act defines a workplace much more broadly — in fact, it includes any “place” where a worker goes, or is likely to be, while at work.

The SafeWork regulator recognises the home office as being a potential workplace. It expects employers to ensure these spaces are as free from health and safety risks as any other workplace.

There are significant penalties for employers who fail to discharge this duty. Depending on the circumstances, corporate entities can be criminally liable for penalties of up to $10,888.858 while individuals could face penalties of up to $2,264,498 (or even imprisonment).

A reminder to discharge duties and limit risks

What is thought to be a real and substantial causal connection between employment and injury is very different in the public’s consciousness to how the courts have determined this issue.

With the prevalence of remote working, we may see more cases where the connection to work is not immediately evident. It remains to be seen if cases such as this influence employers decisions to ask staff to return to the office.

It is up to the employer, as far as practicable, to ensure its workers operate in a safe working environment. This includes when adopting a remote work model. To limit the potential for civil and criminal liability, employers should seek legal advice on updating their policies and procedures on work health and safety and risk assessments.

Authors: Kate Nammour & Joshua Handley

Contributing partners: Mick Franco & Darren Gardner