A court recently found that workers compensation should be paid to the family of an employee who was killed by their de facto partner. HRM looks at what this means for employers.

This article discusses domestic and family violence and may be triggering or distressing to some readers. If you’re in a position where you need support, you can call 1800RESPECT (1800 737 732) or visit Services Australia for more information.

Michel Carroll was a financial adviser residing in New South Wales. She had two children, a teenage son and a newborn. Carroll worked from home alongside her partner in her partner’s financial planning business, SL Hill & Associates. One morning, in 2010, Carroll’s partner killed her. He was later diagnosed with paranoid schizophrenia. He was charged with murder but found not guilty on the ground of mental illness. He is currently a forensic patient. 

Domestic and family violence is a tragedy that happens too often. That it is sometimes fatal is heartbreaking. Between 2000 and 2019, it is estimated over a thousand Australian children lost a parent (most commonly their mother) through domestic homicide. 

Remote work has never been more prevalent than it is now. So it is not surprising that this case, which is about family violence that happened while two people were working from home, has captured people’s attention. It raises the question of when and how employers might be liable for injuries arising from domestic family violence in such circumstances.

That being said, it doesn’t overturn any previous understanding of the law. This tragedy involved a highly specific working situation that is unlikely to be true of many Australians. Nevertheless, the case does shed some light on employer liability when it comes to this disturbing issue.

Workplace safety and family violence

After her death Carroll’s children made claims for benefits under the Workers Compensation Act 1987. The claim was denied by the insurer, but the Workers Compensation Commission found in favour of the children last year. The appeal to the NSW Supreme Court by the insurer was dismissed in June (see the case here). 

In its appeal, the insurer disputed whether Carroll was killed during the course of her employment, whether the murder arose out of the employment and whether her employment was a substantial contributing factor. 

During the course of employment

Whether something happens during the course of employment is really just about whether it happens while a person is inside work hours. Not surprisingly this can get complicated when people are working from home. 

As the time of death was determined to have happened between 8:00 and 10:00am, a question arose as to whether Carroll would be considered to have been working if it was before 9:00am – her normal start time. There was also a question as to whether or not Carroll could be considered to be at work if she wasn’t in the home’s office – her typical workstation.

But the law understands the complexity of modern work. As the arbitrator wrote in the initial decision: “The course of employment extends beyond a worker’s normal hours and place of work, to ‘the natural incidents connected with the class of work’. If a worker ‘is doing something which is part of or is incidental to his service’, he is in the course of his employment.”

While there was no evidence that Carroll had done any work on the day of the tragedy, by looking at her work history it was found that she often handled work calls as early as 7:30am (she had done so the previous day) and had often worked in the bedroom. Such factors were enough for the courts to find that she was at the very least “on call” if not at work at the time of her death.

‘Arising out of employment’ and ‘substantial contributing factor’

Both of these elements of workers compensation are to do with a causal connection. Can an injury be linked to employment, and how strong is that link? This is where the unique circumstances of this case come to the fore.

Carrol’s partner suffered from paranoid delusions. There were a few questions in this case related to that. Were those delusions related to his employment, were they related to her employment and was the attack that came from those delusions related to her employment?

To the first question, while a psychiatrist found that the man’s schizophrenia was not caused by the employment he did find it was a “substantive contributing factor in the aggravation, acceleration, exacerbation or deterioration of the symptoms of the disease”. 

To the question of whether this could be said to be related to Carrol’s employment, it was found that her partner’s “subjective motivation”, even though it was delusional, was enough to draw a link. One of her partner’s beliefs was that Carroll was trying to destroy his career.

To the final question, the insurer argued that Carroll’s employment was not a substantial contributing factor the attack due to a few considerations, including:

• “Ms Carroll’s employment was in clerical work in a peaceful environment”
• “There was nothing in Ms Carroll’s employment which placed her at risk of a sudden and violent attack”

The arbitrator in the initial case found, and subsequent court decisions agreed, that these considerations could be firmly rejected.

While the environment could perhaps be considered peaceful in general, the courts found “it was not ‘peaceful’ on the day she was killed by her co-worker, and may not have been so at other times.” Carroll was working with a supervisor – who was also her partner – who suffered a psychotic episode, so her employment certainly placed her at risk.

Keeping remote workplaces safe

As you can see, this tragedy occurred in a highly unusual circumstance. The employer was the family business, the perpetrator was the owner, and the victim was his partner. But even though most organisations are unlikely to see this scenario replicated, it can still be a lesson.

In an interview with the Sydney Morning Herald, AHRI CEO Sarah McCann-Bartlett says Carroll’s case is a reminder of the need for employers to look at the safety risks associated with working from home.

“We’re not just talking about physical risks such as having the right chair and the right desk. We’re actually making sure that there is no risk from other issues such as violence in the home,” she said.

Unfortunately there is no definitive guide for employers to stop family and domestic violence but there are things they can keep in mind.

It’s important to remember victims of family or domestic violence are often made to feel ashamed of their situation so leaders need to make it clear there will be no adverse impact on their employment by reporting the abuse. 

McCann-Bartlett recommends employers allow employees to disclose risks from other occupants when completing working-from-home checklists. 

If an employee does report abuse the next steps employers take are equally important. A previous HRM article which looked at the risk of domestic violence during lockdown compiled a list of these steps and other helpful resources.

The Family and Community Support (FACS) website also  has more information on how to support those experiencing domestic violence.

AHRI have created a Personal Situation Plan template to help employers create a safe work environment for staff.