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Working from home and domestic violence in COVID-19

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By Amanda Graham, Principal

In March 2020, the New South Wales Court of Appeal handed down a decision in the case of Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 (‘Hill’s case’).  In this case a woman was killed by her defacto husband while she was working at home in the family business. The woman’s eldest child sought compensation from the insurers of the family business for his mother’s death, claiming that her home was substantially her workplace and this contributed to her death.

The Court of Appeal found that family violence can result in a workplace death where it is evident the victim was working from home in the usual course of their employment.

In December 2019 the Victorian Parliament introduced industrial manslaughter laws which came into effect on 1 July 2020.

Industrial manslaughter is an offence that:

  • can be charged against an employer and individual officers of an employer;
  • covers conduct that involves positive acts and/or omissions to perform an act; and
  • can only be successful if:
    • the person charged engaged in conduct that was negligent; and
    • the person charged engaged in conduct that constitutes a breach of one or more occupational health and safety duties owed either by the person or by his/her employer to the deceased person; and
    • the conduct causes the death.

This decision in Hills case was handed down at about the time of the first lockdown under Stage 2 restrictions arising from the global coronavirus pandemic in Victoria. With an increase in the number of COVID-19 cases, Melbourne residents became subject to Stage 4 restrictions on 5 August 2020 which requires residents to remain in their homes except for permitted purposes. In most cases, they cannot attend their usual place of employment.

This has resulted in an increase in the number of people working from home, in close confines with spouses and partners who may have been perpetrators of domestic violence throughout their relationship, and/or who are increasingly finding the need to vent their frustration on their partner due to the psychological impact of COVID-19 and the impact of the restrictions on their daily lives.

There are no statistics yet on the number of people seeking assistance in Victoria in relation to domestic violence since the pandemic began. Anecdotal reports from the Magistrates Court, who deal with family violence matters, indicate that there have been less reports of domestic violence in the last few months, raising a concern that despite people being subject to family violence they are afraid to breach the lockdown restrictions, either for health issues or under pressure from the domestic violence perpetrator.

There are so many unanswered questions arising about working from home. Do we need to review our occupational health and safety plans in light of the industrial manslaughter legislation and Hills case? What should we do to support our staff emotionally who are working from home? How do we even know there may be a risk of domestic violence in a home environment?  We are in unchartered waters in many ways in our current situation, the potential of domestic violence resulting in a workplace death is another one to be navigated.

For further advice on domestic violence, contact Amanda Graham, Principal, at amanda.graham@mst.com.au or at 0488 672 232.