As if trying to run a profitable business and plan for the future isn’t enough in these trying times, employers also have to worry about managing a remote workplace.
Whilst there may be a significant reduction in expenses as a consequence of employees working from home, there are a myriad of factors that must be considered from an employment law perspective.
Employee Safety
Just because your employees are working in their own homes you must not be complacent about their safety or wellbeing. As an employer you may still be responsible for an injury that your employee sustains at home (an environment you do not easily control) whilst performing his or her duties.
A rather extreme example of this responsibility was explored in Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, where a husband and wife operated a family company from their family home that carried on the business of providing financial advice. The husband was charged, but not found guilty of murdering his wife on the ground of mental illness. The dependent children made a claim for workers compensation. It was found that their mother died as a result of an injury arising out of and in the course of her employment, and the children received compensation in their favour.
No matter where an employee works, whether it be at home or retail or commercial premises, it is very important for employers to consider the safety of their employees as failure to do so could result in a drawn out and expensive workers compensation claim. To mitigate the potential for any such claims arising from working at home, employers should consider implementing a strict remote working policy.
Surveillance
Employers may be tempted to monitor the performance of employees working from home by tapping into their computer, emails or tracking their vehicles. However, workplace and other non-workplace specific surveillance legislation[1] may regulate overt and covert camera, computer and tracking surveillance without notice or consent.
A good example of such legislation is the Workplace Surveillance Act 2005 (NSW) which regulates how covert camera, computer and tracking surveillance of an employee may be conducted by an employer. Most importantly, the employer must give an employee 14 days’ notice (unless otherwise agreed) of an intention to conduct the surveillance.
It is crucial that the notice details: the kind of surveillance that will be conducted; how the surveillance will be conducted; when the surveillance will be conducted; whether the surveillance will be continuous or intermittent; and whether the surveillance will be ongoing or conducted for a specific time.
If you don’t provide your employees with prior surveillance notice and decide to performance manage or terminate an employee based on the conduct that you recorded, you’ll likely end up in the Fair Work Commission defending an application for unfair dismissal or adverse action against your former employee. The case of Saar Markovitch v Krav Maga Defence Institute Pty Ltd T/A KMDI [2018] FWC (although later appealed), demonstrates this very clearly.
Mr. Markovitch was dismissed by his employer for spending a substantial amount of time on his phone whilst at work, instead of supervising his defence classes. The employer became aware of Mr Markovitch’s conduct by remotely accessing recently installed surveillance cameras. It was found in the first instance that video surveillance footage of the employee excessively using his phone was inadmissible because the employee was not notified of the video surveillance.
If you are considering installing surveillance software on work devices and/or vehicles to ensure that your employees are working as opposed to sleeping, doing housework or attending non-work-related appointments during work hours, make sure you comply with all relevant surveillance laws.
Summary
Implementing detailed policies and procedures is a key and important aspect to running a successful and profitable business. We recommend that you consider implementing specific policies dealing with working from home and if necessary, policies about surveillance if your employees are likely to be working from remote locations for the foreseeable future.
Contact JFM Law on (02) 9199 8597 or wehelp@jfmlaw.com.au if you have any questions in relation to this article or require advice.
The information contained in this post is current at the date of editing – 6 May 2024.
[1] Workplace Surveillance Act 2005 (NSW); Surveillance Devices Act 2016 (SA); Surveillance Devices Act 1999 (Vic); Surveillance Devices Act 1998 (WA); Workplace Privacy Act 2011 (ACT); Listening Devices Act 1991 (Tas); Privacy Act 1988 (Cth).
