By Thomas Parer and Lindsay Carroll, NRA Legal
The need for employers to consider the impact of domestic and family violence on their workforce has been highlighted by the outbreak of COVID-19, with many domestic and family violence support services reporting a spike in cases as a result of lockdowns across the country.
A recent case, Workers Compensation Nominal Insurer v Hill  NSWCA 54, has illustrated that domestic and family violence can have a number of unexpected legal consequences for employers, particularly where employees are working flexibly, or both parties in an abusive or violent relationship are employees of the same employer.
The subject of this decision was the tragic murder of Michel Carroll by her de facto partner, Steven Hill. Both Ms Carroll and Mr Hill were employed by a family company, where they provided financial advice from the family home. Mr Hill experienced paranoid delusions, which resulted in him attacking and killing Ms Carroll in their bedroom.
Ms Carroll was survived by her two children, a teenager and a newborn baby, who made claims for workers compensation following the incident. The Nominal Workers Compensation Insurer resisted these claims. However, the Workers Compensation Commission determined that Ms Carroll died as a result of an injury arising out of and in the course of her employment, and therefore that compensation was payable. This decision was further upheld by Deputy President Wood.
The insurer appealed this decision again to the Supreme Court of New South Wales, Court of Appeal on a number of grounds. In this article, we will examine the Court’s reasoning as to whether:
- the incident occurred in the course of Ms Carroll’s employment; or
- arose out of Ms Carroll’s employment.
Was the injury ‘In the course of employment’?
One of the insurer’s arguments was that it could not be concretely proven that the incident occurred “in the course of employment” because:
- Ms Carroll’s usual working day commenced at 9:00AM;
- the office was on a different floor of the home;
- Ms Carroll was still in her pyjamas;
- there was no evidence that Ms Carroll had planned for any work that day, particularly any work prior to 9:00AM; and
- telephone and computer records disclosed no work-related activity by Ms Carroll that day.
The Court of Appeal rejected this argument.
The evidence in the case suggested that the likely time of death was between 8:00 – 10:00AM. As her usual ‘start time’ for work was 9:00AM, the Commission was left to consider if the injury has occurred before 9:00AM and if so, whether this was work time.
It was determined that it was likely that Ms Carroll was “on-call” in this period because:
- there was evidence she would frequently be “on-call” from as early as 7:30AM on some days, even having done so on the day before the incident;
- there were work files in her bedroom; and
- she had a newborn baby to feed and look after, and could be expected to be “on call” in her bedroom while doing so.
Did the injury ‘arise out of her employment’?
The insurer also argued that the injury did not arise from Ms Carroll’s employment, and that nothing in her clerical role placed her at risk of sudden and violent attack from paranoid delusions. This was contrasted against the role of a psychiatric nurse, who could expect such a hazard.
While the Court agreed that ordinarily Ms Carroll’s role would not involve a risk of attack from paranoid delusions, the Court rejected this argument and upheld the finding that Ms Carroll’s death arose from her employment. The Court made this finding on that basis that Mr Hill was her co-worker and his delusions included delusions about her conduct at work, believing that she was conspiring with ASIC and AMP to take away his clients and accreditation as a financial planner.
Lessons for employers
Ultimately, the Court found that workers compensation was payable to the family of Ms Carroll in relation to her murder.
While the facts in this case are unique, this case highlights how domestic and family violence can overflow into the workplace, and why it’s a workplace issue.
While the outcome of any workers’ compensation claim will depend on the circumstances surrounding an injury, employers should note that workers compensation may be payable as result of domestic and family violence, particularly where the abuse or violence occurs between co-workers.
Employers should also consider what effect allowing employees to work flexibly, from home, or ‘on-call’ will have on liability and their health and safety obligations to employees.
We recommend that employers:
- make it clear that the workplace is supportive of any employees who may be experiencing domestic and family violence;
- introduce policies and procedures to minimise the risk of harm from domestic and family violence;
- look out for signs that their employees may be experiencing or engaging in domestic and family violence;
- take steps to support an employee where they are experiencing domestic and family violence; and
- encourage behavioural change, where possible, where an employee is engaging in domestic and family violence.
If you are seeking support or guidance on how to ensure the health and safety of your employees with respect to domestic and family violence, visit the National Retail Association’s Domestic Violence Retailer Support Hub for resources to help you understand how to prevent domestic and family violence, and ensure the safety of employees experiencing domestic and family violence.
Alternatively, if you have a question about your legal obligations in relation to domestic and family violence and want to discuss your situation with someone, contact the NRA Workplace Relations team on 1800 RETAIL (738 245).