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Precedent (Australian Lawyers Alliance) |
THE PROBLEM OF DOMESTIC VIOLENCE SINCE HILL
By Emily Wittig
‘The core element of a worker's course of employment will be attendance at a workplace or carrying out work functions, during usual business hours.’[1]
Since COVID-19 stormed our shores in March 2020, the Australian definition of ‘workplace’ has expanded. The flexibility that has come with many workers’ new-found ability and desire to work from home – including the removal of the ‘9 to 5’ norm, a popular concept in Australia since Federation – has presented many challenges for the workers compensation legislative scheme.
In July 2022, international conglomerate Twitter announced that it was closing its Sydney CBD office. The space opened in 2016 but, since the pandemic, the company decided that it could operate successfully whether employees occupied an office space or worked from a location that suited them. A spokesperson told The Sydney Morning Herald:
‘Over the past two years, we’ve proven we can operate our business successfully with a distributed workforce, regardless of whether our employees work from an office or full-time from home.’[2]
Clearly, times have changed.
The quote at the start of this article, from 2012 NSW Court of Appeal case Pioneer Studios Pty Ltd v Hills, encapsulates what it was to be employed prior to 2020. But what does ‘attendance at a workplace’ look like now? Most jurisdictions have grappled with the traditional meaning of ‘attendance at a workplace’ and how it is, or can be, substantially connected to employment.
Previously, in Victoria and Tasmania, the test for ‘workplace’ was decided by the spatial limits of the employment. For example, in the 1998 case Saunders, Andrew Paul v M J Burns t/as Silviculture Specialists and MMI Insurance Limited,[3] the Supreme Court of Tasmania addressed the issue of ‘place of employment’. In this case, an employee, who had walked to the top of a quarry to the toilet and chose to return via ‘the most direct route’, had jumped down the quarry face and injured his knee. At first instance, the Commissioner who tested the claim decided that the quarry face was not a place of employment but the path down to the quarry floor was. This interpretation was dismissed by the Supreme Court – it was held that since the Commissioner had concluded that both the top and the bottom of the quarry were parts of the place of employment, ‘the fact that the most direct route from one part of the place of employment to another part was dangerous’ was ‘beside the point’, and the appeal was allowed.[4]
This article looks at how domestic violence has found its way into the ‘place of employment’ and how it can be a substantial or significant contributing factor to domestic violence, as applied by the NSW Supreme Court in Workers Compensation Nominal Insurer v Hill[5] (Hill [2020]). Although this article focuses on the NSW jurisdiction, several other states have similar legislative definitions to NSW and often use NSW case law as a helpful authority when interpreting if employment was a substantial contributing factor to the injury.[6]
DOMESTIC VIOLENCE IN THE WORKPLACE
With the introduction of the harsh COVID-19 lockdowns in 2020 and 2021, the community saw a spike in incidents of domestic violence. That is not to say that those workers lucky enough to work from home prior to the pandemic were not at risk of domestic violence. But as people were forced into their homes to work, study and play, it was inevitable that domestic violence in the workplace and its risks to work health and safety (WHS) would be raised as a significant management problem. For example, Safe Work Australia and the state equivalent WHS authorities have recently published fact sheets about the issue of domestic and family violence and its impact on the workplace.[7] Employers should be looking at the risks.
A study conducted by the Australian Institute of Criminology, The prevalence of domestic violence among women during the COVID-19 pandemic,[8] showed that domestic violence was experienced or had escalated for two thirds of the 15,000 women interviewed.[9] The study focused on women, as it is recognised that women are disproportionally the victims of domestic violence, domestic homicide and significant harm in a domestic setting from cohabitating partners. It should be noted that while women are disproportionally represented as victims, men are also victims. Anecdotal evidence out of the UK has indicated that there was an increase in men accessing domestic violence helplines as victims: during the first lockdown, the Men's Advice Line received ‘nearly 8,500 calls over the first three months’ which was ‘significantly higher’ than the volume received during the same period the previous year.[10]
The participants of the study were drawn from every state and territory, with 32 per cent of participants – the greatest percentage – living in NSW. The average age of participants was 48; 3.8 per cent of participants identified as Aboriginal or Torres Strait Islander; and 18.7 per cent indicated that English was their second language or not the main language spoken in the home.[11] The sample range was, the researchers concluded, representative of the broader Australian community.[12]
The categories of domestic violence – physical violence, sexual violence, emotionally abusive, harassing and controlling behaviours, and coercive control – were grouped based on the seriousness of the event. In the three months prior to May 2020, of the women in cohabiting relationships, 8.2 per cent experienced physical violence; 4.2 per cent experienced sexual violence; 22.4 per cent experienced emotionally abusive, harassing and controlling behaviours; and 11.1 per cent experienced coercive control.[13] As one would expect, some participants indicated that they were already experiencing domestic violence prior to the sample time. Of these participants, more than half said that the violence had escalated. Surprisingly, almost 14 per cent of participants in this group reported that the violence had reduced.[14]
If the sample is reflective of the experiences of the entire population of Australia, moving employees into the home increased the risk of injury that, for the most part, was outside the control of the employer. The usual avenues of ‘risk assessment’ and ‘risk management’ could not be accessed because the government had mandated the closure of offices, schools, community centres and other workspaces that an employee might otherwise be able to access (or escape to) to avoid these injuries.
In 1987, the NSW government introduced the Workers Compensation Act 1987 (NSW) (WC Act) to provide avenues for employees to access payment at times when they became ill or injured as a result of the workplace. It is outside the scope of this article to discuss the history of the implementation of the workers compensation schemes across Australia but one wonders if, at the time the legislation was written, the legislature would have conceived of a time when Australians may work in domestic settings.
THE LEGISLATIVE FRAMEWORK AND HILL
The definition of ‘injury’ in s4 of the WC Act provides simply ‘personal injury arising out of or in the course of employment’. Section 9A adds that compensation is not payable ‘unless the employment concerned was a substantial contributing factor to the injury’.
What constitutes a ‘substantial contributing factor’ was the question the Court was asked to decide in Hill [2020], in which the Nominal Insurer appealed the decision of the Deputy President of the Workers Compensation Commission (the Commission) to award compensation to the children of the deceased, Ms Carroll. The Nominal Insurer alleged that the Deputy President had erred (on a question of law, not fact) in deciding that the deceased’s employment was a ‘substantial contributing factor’ to her death at the hands of her de facto partner, Mr Hill.
Litigation history of Hill
The litigation history of the Hill matter was varied and crossed into criminal law. Mr Hill operated a financial advisory business at Wamberal on the Central Coast of NSW. The business was operated out of the house that Mr Hill and Ms Carroll occupied. S L Hill and Associates Pty Ltd contracted and provided services to AMP. Ms Carroll was employed initially as the office manager and later, after the business had a downturn, as a ‘paraplanner’; her tasks involved the preparation of advice and supervising call centre staff.[15] Mr Hill was the director and financial services licensee. Towards the end of Ms Carroll’s life, Mr Hill became paranoid and believed that AMP was ‘monitoring’ him and that Ms Carroll and her eldest son were assisting AMP and ASIC to do this. On 16 June 2010, Mr Hill, suffering a severe mental health episode, assaulted Ms Carroll and she died as a result of her injuries. Mr Hill was charged with her murder but was later found not guilty by reason of mental illness.[16]
Mr Hill, naming Ms Carroll’s children as recipient dependants, commenced a workers compensation claim stating that her death was substantially connected to her employment. The business activities and location where they were performed were material to the claim. At first instance, the insurer, AAI Ltd trading as GIO, rejected the claim, stating that the injuries were not ‘substantially’ connected to the employment, pursuant to s9A of the WC Act. Subsequent arbitrations decided in favour of the insurer in 2017 and later, in 2018, in favour of Ms Carroll’s children.[17] Mr Hill withdrew his claim, as it was recognised that the children were wholly dependent on Ms Carroll. Of the compensation awarded, 70 per cent was attributed to the youngest child and 30 per cent to the eldest.
In S L Hill and Associates Pty Ltd (de-registered) v Hill[18] (Hill [2019]), the Commission outlined, based on the evidence of Ms Carroll’s son, that Ms Carroll worked in various locations within the house including, relevantly, the bed, where she worked on her laptop, answered phones and read documents.[19] After the birth of her second child, Ms Carroll took regular breaks during the work day and usually worked between 7:30am and 9:00pm. Ms Carroll’s eldest son gave evidence that he would come home from school and Ms Carroll would be working in the kitchen or in the bedroom and still wearing the clothes that she slept in.[20]
The insurer sought to persuade the Commission that there was no causal relationship between Ms Carroll’s employment and the assault. They argued that ‘it was not part of Ms Carroll’s role to work with a schizophrenic with paranoid delusions’.[21] However, supporting the views of the Arbitrator, the Commission said that it was open to the factfinder to conclude that Ms Caroll’s role and its associated duties – the office manager responsible for reporting to ASIC – was ‘very relevant’[22] to the delusions of her employer and was therefore a ‘substantial contributing factor’.[23] The Court held that the Arbitrator had not erred in arriving at the conclusion that she did and dismissed the appeal.[24] Thus it can be said that the performance of work by Ms Carroll and the injuries she sustained were within the scope of s9A of the WC Act.
The case refers, with authority, to the matter of Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited.[25] This was another case involving an injury that occurred outside the traditional office environment. The employee and her supervisor where at a ski resort to recruit the resort as a client. A skiing session was organised between the employee and a representative. While the employee was on the mountain, her supervisor telephoned and asked her to return to the resort to discuss further business. Complying with the direction, and on the way down the mountain, the employee injured her knee. Initially the claim was rejected, as the injury was said to be ‘not “work for, or an activity of, the employer”’.[26] In allowing the appeal, the NSW Court of Appeal said the meaning of ‘substantial contributing factor’ can only mean a factor that ‘was real and of substance’, and that such terms as ‘weighty’, ‘predominant’ or ‘large’ provided unhelpful and irrelevant lines of enquiry.[27]
So, in affirming the decision of the Arbitrator in Ms Carroll’s case, the Commission formed the view that the Arbitrator had not erred and that there was sufficient evidence available to her to come to such a decision, and dismissed the appeal.
In the Court of Appeal matter Hill [2020],[28] the Court upheld the decision of the Commission, saying that the previous finders of fact had correctly identified that there was a direct connection between Mr Hill’s paranoia, Ms Carroll’s employment and her death, and between each of these there was a causative nexus that was ‘substantial’ in accordance with the WC Act.
Lessons from Ms Carroll’s death for employers
Representatives of the insurer said that ‘it was not part of Ms Carroll’s role to work with a schizophrenic with paranoid delusions’.[29] That is certainly true. Workers have a right to attend work and safely return home – even if work and home are, for a portion of the day, the same place. Indeed, the Hill matter is an extreme case of mental illness crossing into and caused by the workplace. Employers must be mindful of the environment in which their employees find themselves. Often the subtle signs of domestic or family violence are missed and employers may reasonably be unable to take preventative steps to ensure their employees’ safety in a flexible workplace environment. Significantly, the increase of domestic violence in the community over the past couple of years highlights the difficulties faced by employers in terms of monitoring their employees’ mental health from home offices, and also spotlights the risk of domestic violence events to workers in the home office. A ‘risk assessment’ of home offices may not show up the real risk – domestic violence – because what happens behind closed doors often stays there. An employer may not have a relationship with the employee that allows that employee to open up about their situation at home. For example, they may be a new employee who is yet to make connections in the workplace.
This is not to say that employers are responsible for keeping their employees safe from domestic violence in all aspects of working life, but employers should be mindful of how the courts have interpreted ‘significant contributing factor’ in s9A in light of Hill [2020].
Mr Hill’s mental illness was fuelled by the work performed by Ms Carroll. If Ms Carroll was not responsible for reporting to ASIC or AMP, perhaps her work may not have been a ‘substantial contributing factor’ to Mr Hill’s mental illness.
Since the NSW Court of Appeal has interpreted ‘substantial’ to be more than ‘weighty’ or ‘predominant’, the definition of ‘workplace injury’ could be expanded beyond what was traditionally expected of an employer to keep employees safe from harm. As society moves into a permanent state of flexible workplace arrangements, and employers start to expect that their employees are ‘on call’ at irregular hours, like Ms Carroll was, the term ‘substantial contributing factor’ is now much broader.
Importantly, employers must ensure that they have a robust work from home policy in place, that home offices are subject to vigorous risk assessments and, where possible, are personally attended to and reviewed by a work health and safety specialist. Employees should be encouraged to be open and honest about all the dangers that working from home presents to them and employers should work to make the proverbial ‘open door policy’ metaphorical as well as literal.
Emily Wittig is a Lawyer and Employment Relations Specialist working at Catholic Employment Relations Ltd, with extensive experience in employment and commercial matters. Emily also volunteers her legal services at Redfern Legal Centre, providing employment advice to vulnerable workers in the Sydney area, and has a particular interest in the intersection of criminal law with employment law.
PHONE (02) 9189 5966 EMAIL emily.wittig@cer.catholic.org.au.
[1] Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324, [37] (Basten JA).
[4] Ibid, 18th paragraph of judgment (unnumbered) (Underwood J).
[5] [2020] NSWCA 54 (Hill [2020]).
[6] For example, see Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s25, and Workers’ Compensation and Injury Management Act 1981 (WA) s5, definition of ‘injury’.
[7] See Safe Work Australia, Family and domestic violence at the workplace – information sheet (1 January 2021) <https://www.safeworkaustralia.gov.au/doc/family-and-domestic-violence-workplace-information-sheet>.
[8] H Boxall, A Morgan and R Brown, ‘The prevalence of domestic violence among women during the COVID-19 pandemic’, Statistical Bulletin, No. 28, Canberra: Australian Institute of Criminology (2020) <https://doi.org/10.52922/sb04718>.
[9] Ibid, 1.
[10] J Kelly and S Graham, ‘Coronavirus: Domestic abuse helpline sees lockdown surge’, BBC News (23 July 2020) <https://www.bbc.com/news/uk-53498675>.
[11] Ibid, 4.
[12] Ibid, 3.
[13] Ibid, 6.
[14] Ibid, 12.
[15] S L Hill and Associates Pty Ltd (de-registered) v Hill [2019] NSWWCCPD 37 (Hill [2019]), [29].
[16] R v Stephen Leslie Hill [2011] NSWSC 1196, [31].
[17] Hill [2019], above note 15, [7].
[18] Ibid.
[19] Ibid, [45].
[20] Ibid, [47].
[21] Ibid, [286].
[22] Ibid, [289].
[23] Ibid, [292].
[24] Ibid, [293]–[294].
[26] Ibid, [19].
[27] Ibid, [82].
[28] Hill [2020], above note 5.
[29] Hill [2019], above note 15, [286].
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2022/61.html