Commission muddies the water on whether working from home is a benefit for employees

Since the outbreak of COVID-19 in Australia in March 2020, there has been significant shifts towards working from home across multiple industries.

The NSW Personal Injury Commission has now considered in what circumstances being refused the opportunity to work from home may amount to the withdrawal of an employment benefit or transfer, namely for the purpose of a section 11A defence to a psychological injury condition.

Key Points:

  • The recent Personal Injury Commission decision of Birse v State of New South Wales (NSW Police Force) states that working from home for operational purposes does not fall under the ambit of the ‘provision of employment benefits’.
  • To be a benefit within the meaning of section 11A(1), there must be some kind of convenience to that worker outside the basic terms of their employment contract, such as flexible working arrangements.
  • A change from working at home to the office; may still be caught by the term of ‘transfer’ depending on the injured worker’s duties.

In the recent decision of Birse v State of New South Wales (NSW Police Force) [2021] NSWPIC 381 (28 September 2021), the injured worker was subject to widespread roster changes to their team, abolishing weekend work, most callout work, and required those employees to work from the office.

Before these changes, the injured worker performed on-call work from home every second weekend.

The injured worker sustained an exacerbation of his insomnia and a psychological condition as a result of the changes implemented by the NSW Police Force.

The employer sought to defend the claim under section 11A(1) of the 1987 Act, asserting that any injury was the result of reasonable actions taken with respect to the provision of employment benefits and transfer.

The Commission did not consider the actions by the NSW Police Force to be ‘transfer’ as they determined that the fortnightly call-out work from home “simply ceased to exist” as a result of the changes. They noted that the removal of just this one day made it artificial in describing the actions as ‘transfer’.

The Commission did consider, however, that a more widespread direction to perform the same work in an office environment rather than home (in other circumstances) could still be caught by the term.

As to the ‘provision of employment benefits’, the Member concluded that the phrase is used in the sense of a benefit beyond the basic contractual terms of employment and may include flexible working arrangements.

However, the Member accepted that it did not include circumstances where “working from home was an operational matter and not for the particular convenience of the employee”.

Moving forward, insurers will need to be mindful when disputing liability under section 11A for injuries resulting from changes to a work from home arrangement. This includes ensuring that the basis for the arrangement is properly considered, and when relying on it being an employment benefit, that consideration is given to whether the benefit to the worker obtained from the arrangement went beyond pure operational convenience.

Please contact Hicksons Partner, Mitchell Strachan, at [email protected]u if you need any assistance or guidance.

Post by Hicksons Partner, Mitchell Strachan, Solicitor, Thomas Ryan, and Paralegal, Kimberley Cheng.  

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