In brief:

The recent WorkSafe prosecution in South Australia in Farrell v Multi Cultural Youth Education Support Services Limited [2023] SAET 57 (MCYESSL's case) is a timely and tragic reminder for schools and supports services of the need to implement appropriate risk assessments (including ensuring that staff are adequately skilled to undertake a risk assessment if required) and the necessity to get legal advice early when an incident occurs so as to engage in an effective strategy with the Safety regulator.

Background

In MCYESSL's case, MCYESSL operated a school with three campuses. A student, A, went on a two day school camping trip with seven friends and two teachers.

A MCYESSL teacher, acting in accordance with the school’s Staff Handbook and Excursion Policy, used the school’s online staff portal “Edsmart” to generate a risk assessment and permission slip.

When A and two friends arrived at the camping site, they went to some rocks overlooking the sea with their fishing rods to start fishing. One of A's friends slipped off the rocks and fell into the sea, and A and another person jumped into the sea. Tragically, A drowned.

WorkSafe prosecuted MCYESSL for breach of its duties under the Work Health and Safety Act 2012 (SA) for failing to provide safe systems of work for the excursion and failing to conduct appropriate risk assessments, because upon investigation by the Regulator, the Regulator discovered that:

  1. Although the pastoral care teacher was trained in how to use the Edsmart software, there was no evidence that either the teacher or the coordinator approving the trip had any work health and safety training for conducting risk assessments.

  2. Rock fishing was not included in the risk assessment, even though the camping location provided for rock fishing.

  3. Life jackets were not provided even though the camping location was by the sea.

  4. Non-slip shoes were not considered even though the camping location provided for rock fishing.

MCYESSL plead guilty to the charge. Notwithstanding the guilty plea, the Tribunal still gave the school a significant final as a deterrent to those bodies charged with the care and protection of children because

"Children are particularly vulnerable. They have a limited capacity to protect themselves. They and their families entrust their safety to schools and similar bodies."

In light of the early guilty plea, the Tribunal discounted the penalty from $700,000 to $420,000.

Lessons for employers

In light of this tragic case, it is critical that employers who have care of vulnerable people:

  1. Undertake comprehensive and suitable risk assessments when conducting any activity (particularly offsite activities).

  2. Ensure staff conducting the risk assessments are suitably qualified.

  3. When an incident occurs, take appropriate steps to manage, investigate and reflect on the incident.

Consider an appropriate strategy for dealing with the Regulator, as it may be viewed favourably with respect to potential fines and prosecution.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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