When do employer responsibilities stop?

Does employer responsibility for employees end at the end of the workday?

Not necessarily. When employees finish work for the day, they may still be attending an after-work function, conference or interstate or overseas trip, so the legal responsibilities continue.

And employees working from home may not be at a formal workplace, but still have rights to HR issues such as workers’ compensation.

Accidents too can involve an employee and, therefore, be a responsibility, according to one legal expert.

“Where an accident occurs, the laws are different across Australia and vary depending on whether the employee was driving to/from their workplace or driving during the day between one workplace and another,” Jo Alilovic, director, 3D HR Legal, said.

“For example, in Western Australia and Victoria employers will not generally be responsible for employees receiving an injury on their way to or from work.  

“An employer may be vicariously liable for any accidents caused by an employee where the purpose of the trip was for work purposes, but not usually in circumstances where the accident involved serious or wilful misconduct such driving whilst drunk, or a work vehicle was being used in a way not permitted such as someone else driving the work vehicle.”

After-work functions and employee safety

One of the growing problematic areas for lawyers is after-work functions where alcohol is served.

The issue gets further complicated if an incident occurs after the official work function has finished and individuals have decided to continue on.

In the case of Hattenfels v Richard Panel Pty Ltd (2022) an employee sustained a traumatic brain injury, which resulted in a high probability of never being able to work again.

The employee had attended a work function and afterwards went back to the employer’s house to continue on partying when a group of people decided to jump on a golf cart to find some kangaroos at 3am in the morning.

The employee fell off the golf cart and sustained permanent brain injuries.

It was ruled that regardless of whether or not the worker’s injury was solely attributable to serious and wilful misconduct, a defence under s 14(2) of the Workers Compensation Act 1987 (NSW) did not apply as the worker had indisputably sustained “serious and permanent disablement”.

On the question of whether the injury arose out of, or in the course of, employment (s 4), there was a “seamless” continuation of social activities at the employer’s family home after the Christmas party.

The judge held that the injury sustained by the employee was a workplace injury. In reaching this conclusion, the Judge held at paragraph [100]:

‘I accept that the continuation of the social activities at the respondents (employers) premises was seamless. To my mind there appears to be no interruption or deviation from the intended beneficial purpose to the employer of allowing a Christmas celebration to facilitate a harmonious working group.’

In making this conclusion, the Judge considered the following factors:

1. The social event was exclusively held for employees
2. After the events at the tavern had finished, the employer organised a taxi from the tavern to their premises
3. After all the employees arrived at the employer’s residence, further drinks were provided to the employees and music was played (encouraging them to be there)
4. No one was asked to leave the premises.

Determination of workers’ compensation

Workers’ compensation is a no-fault jurisdiction meaning that injured or ill employees will be entitled to compensation regardless of who caused the workplace accident, Alilovic said.

“There are some limited exceptions, for example, where an injury is intentionally self-inflicted. 

“However, where an employee has contributed to their own illness/injury, it may mean that they are entitled to less if they are able to and decide to pursue common law damages. It is not uncommon for employers to try to claim contributory negligence on the part of the employee to reduce their exposure.”

Working from home and workers’ comp

There are also responsibilities for an employer with the hybrid model. Employees need to be working in safe conditions and most employers have a checklist to check office set-up.

“Whether an employee can access compensation under workers’ compensation laws will depend on whether or not the injury occurred at a ‘workplace’,” Alilovic said. “When someone is working from home, it is important to define what areas of the home are the workplace.”

At a minimum, this would be expected to include where the employee performs their work such as a home office, the bathroom and kitchen and pathways between as these are all essential for the purpose of a workplace, she said.

 “Whether an injury is compensable, and the responsibility of the employer will depend on what the employee was doing at the time and whether they were working or at work, or on a usual absence. For example, in the case of Demasi v Comcare, an ABC journalist was working from home when she decided to go for a run.  Ultimately, this was found not to be a compensable injury.”