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Education Law Articles - Occupational Health & Safety

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How large is your staff lunchroom?

In December 2004, a provisional improvement notice was issued to a state school in Melbourne's southwest alleging a failure to provide adequate facilities for the welfare of the staff. The notice was issued by a school employee who was elected as the health and safety representative by the staff. The teachers' lunch room was said to be too small for the number of teachers using it. There were only 13 chairs for a staff of 25. The noisy and overcrowded room led to the risk of scalding from hot drinks, trips and falls, and stress and low morale.

As nothing was done, in September 2005, a WorkSafe Inspector issued an improvement notice to the Department for failing to remedy the breaches of the Occupational Health and Safety Act 2004 identified in the earlier notice.

The Court imposed an $8,000 fine in August 2007 for the Department's failure to make the lunchroom safe. The WorkSafe Victoria General Manager said: “Health and safety representatives are a crucial element in making Victorian workplaces safer and when they raise issues of safety, employers must listen and act.”
 


OH&S

Breaches of the NSW OH&S Act were alleged following an attack on staff by a 15 year old student. The Education Department had records of the student’s previous violent behaviour in other schools but was slow to inform the staff at his new school. The school counsellor, though doing a good job, was only there one day a week for the school - reducing her ability to evaluate the student’s needs quickly. After the school informed the Department that the student required a Special Support Teacher, there was another lengthy delay. It was during this delay that the student was involved in the two incidents: the first resulted in the student having to be restrained while the second involved the student chasing staff and other students with a knife. These incidents resulted in significant mental and physical injuries to the staff involved.

The Industrial Relations Commission found that the Department had failed to meet its duty to the staff. The delays, according to the Commission, were at the heart of the OH&S breach.

The case illustrates that the responsibility to educate and the responsibility for staff and student safety are concurrent, not conflicting, obligations. A school authority must consider the safety of staff when developing its OH&S policy and then ensure that the systems they have put in place are carried out. Simply creating procedures and “paper systems” is not enough to fulfil a school’s OH&S responsibilities. Delay, or failure to carry out procedures designed for staff and/or student safety, may amount to a breach.
 


Are you responsible for injuries to volunteers?

The NSW Supreme Court of Appeal has decided that volunteer workers are covered by construction safety laws in the same way as employees. Does your school hold working bees or days at which parents and friends of the school can do work on the school premises voluntarily? The recent case involved a volunteer at a church site who was an experienced roofer. He was injured when he fell from the partially completed church roof while inspecting it prior to commencing work on it. 


Computer Cable Hazard

In Ms Whitton’s Year 6 classroom were a number of computers with several cables hanging loosely below the tables from the computers. Over several months, Ms Whitton had complained to the head-master about these cables, particularly because some students kept pulling the cables down. The headmaster reprimanded the students but did nothing to fix the problem. Ms Whitton attempted to tape the cables to the tables but they kept falling down or being pulled down. One morning before school, Ms Whitton was in the classroom at the computer and, as she rose to leave, she caught her foot in the cord, twisting it and causing pain to her back and leg.

The NSW Court of Appeal found that the school was responsible because the risk that this type of injury would occur, although not high, was clearly recognisable. The danger was obvious and it was quite likely that, over time, it would occur. The Court said it was not enough to allow the teacher to try to fix the problem herself or simply to talk to the students who had been mischievously pulling down the cables. That is, the employer did not respond to the foresight of injury in the manner in which a reasonable person should have responded.

The Court also stressed that it was important to look at the particular situation – that is, what measures would be reasonably effective in fixing the hazard in that classroom, not just what may be effective in another office or workplace. The duty of the school was held to be wider than simply hearing Ms Whitton’s complaints and responding to them. This was because the duty which schools, like other employers, owe to their employees in relation to safety in the workplace is a responsibility to take reasonable care, whether or not there is a complaint about an unsafe situation. This is a reminder to schools to be proactive in addressing workplace safety issues. Do not wait until someone gets hurt. 


Was the librarian worked too hard?

Put simply, this was the question for the Full Court of the Supreme Court of WA recently. Mrs Wylie worked in the TAFE library. She suffered a psychiatric illness (a form of depression) which meant she couldn't work. She claimed the illness was caused by her employer giving her too much work to do and work of a kind for which she was unsuited due to her lack of education, training and experience.

The Court found that it wasn't reasonably foreseeable that the workplace environment, Mrs Wylie's duties or the hours she worked might result in her suffering a psychiatric illness. The Court noticed that she hadn't complained about her duties or the hours she worked and that her staff appraisal forms indicated that she was enjoying her work. She apparently sought higher duties and was pleased to work overtime. 


A School’s Duty to Teachers

A teacher in an English high school was on playground supervision duty when a ball struck her causing injury. Students were playing with the ball in a "no ball game zone". They should not have been playing with it there. The teacher alleged that, in having to monitor and supervise the no ball game zones, she was exposed to a risk of injury and that the school had not done enough to ensure that reasonable precautions were taken to guard her against injury.

The no ball game zones had only been set up a few weeks before the teacher's injury. The school said that it had sufficient staff supervising at lunchtime and that it had done what it could to ensure that the teacher was not at risk of injury. They had brought the no ball game zones to the attention of pupils and staff and re-enforced those rules at appropriate times.

The Court pointed out that the school had a common law duty to take reasonable steps to prevent such an occurrence. It found that the school did take such steps. It had prepared a plan of the no ball game zones and circulated a written instruction. Children had been made aware at assemblies, in daily bulletins, from notices and by teachers that they should not play ball games in the zones. The Court found that the cause of the accident was not any failure by the school, whether in breach of its common law duty or in breach of its statutory duty. It had occurred because children were playing ball in a no ball game zone, doing what they had been told not to do. In these circumstances, the school had done everything that it could reasonably have been expected to do to prevent such an accident. The claim was dismissed.


Demountable Downfall

Mrs Fisher was a teacher working with disabled children in a special school. She was injured in the course of her employment when she somehow fell and hit her head on a table whilst she was moving around the classroom. Her classroom was made up of an arrangement of four different demountable sections. Strips of metal covered the areas on the floor where the sections of the classroom were connected. They regularly became loose.

Mrs Fisher did not see what caused her to fall because she was watching a child very closely as she moved but she claimed that she tripped over one of these loose metal strips. There was no other helpful evidence indicating the cause of her fall since her assistant was out of the room at the time. Mrs Fisher suffered head injuries with considerable side effects greatly limiting her ability to perform simple tasks. Her previous condition of depression was severely exacerbated affecting her marriage and other relationships. She sued the school for being negligent in ensuring she had a safe work environment.

The success of Mrs Fisher's claim revolved around whether she had actually tripped over the metal strip as she had claimed, or whether she slipped on a child's toy or liquid of some sort in the kitchen. The school did not contest its liability for the accident if it was caused by the loose metal strip on the floor but asserted that it was more likely that she slipped on something else. The court concluded that it was more likely that she had tripped on the metal strip as she claimed and awarded her over $1 million to compensate her for the injuries she sustained.

The case emphasises the need for schools to ensure that school campuses are maintained as safe workplaces. Maintenance staff must check regularly for potential safety hazards and then repair or remove risks that are identified. 


The (Occupational Health and) Safety belt tightens again

It is well-established that employers should take steps to protect their employees from harm while at work. But did you know that this is not just a duty to take reasonable care, but rather a duty to ensure their workers’ health, safety and welfare?

To add to this, the NSW Industrial Relations Commission has recently applied a provision that holds directors and managers personally responsible for OH&S offences committed by incorporated employers. In this case, a truck driver died when his truck went off a road maintained by his employer, crashed and rolled over. His employer and its three directors were charged with failing to ensure the road and truck were safe and failing to adequately inform and train him, under sections 8 and 26 of the NSW Occupational Health and Safety Act 2000.

The directors tried to rely on Kirk, a recent High Court decision, which essentially said that it would be ‘unjust’, ‘absurd’ and ‘oppressive’ for an employer or a director to be charged with an offence, but not be told specifically what they had done wrong, or what they could have done to avoid the risk to health and safety. But Kirk wasn’t about s 26 which, the Commission said, worked as a ‘deeming provision’, meaning that the directors and managers are not otherwise innocent parties who are just taking the blame for their company. Rather, because of their position and assumed authority, they are considered to have been complicit in the offence. Therefore, once the employer company has pleaded guilty, as happened in this case, there is no need for the prosecution to separately prove that the individual directors were guilty.

There was understandably significant concern by employer representatives following the decision. It was argued that, by upholding s 26, the Commission had effectively created a regime of ‘guilty until proven innocent’. However, the Commission pointed out that:

  • section 26 does allow directors and managers to avoid liability if they can show the court that they were either unable to influence the conduct causing the offence, or used ‘all due diligence’ to try to prevent it from happening;
  • the maximum prison term for such an offence is 2 years, which the Commission considered to be ‘at the low end of penalties’; and
  • there may be cases where fairness to a defendant director would require a separate description of what he or she had done wrong (but this would be at the judge’s discretion).

Fair or not, this decision has considerable implications for all NSW companies, including of course schools which are incorporated. It seems that the Commission is willing to attribute personal liability to those who, it might be said, constitute the mind of a company (e.g. the school council).

In any case, the most prudent course of action is prevention rather than cure. Schools should do everything possible to safeguard the welfare of their teachers and other employees.
 

Questions about Occupational Health & Safety?
Contact +61 2 9267 9800

 

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