In a timely reminder of the impact of student violence in the education sector and its very real cost to staff and educational institutions, the ACT Education Directorate has recently entered into a record undertaking with Worksafe ACT in relation to injuries suffered by staff.
Following a series of investigations by WorkSafe, it was alleged that the Education Directorate had failed to comply with its duties under the Work Health and Safety Act 2011 (ACT). Specifically, WorkSafe alleged that the Education Directorate had not done all that was reasonably practicable to ensure the health and safety of staff because it had:
- applied inconsistent or inadequate controls to workplace hazards associated with student behaviour
- failed to adequately adjust controls following incidents or changes in circumstances
- failed to provide adequate training to staff in the application of identified controls.
The investigation focused primarily on incidents of student violence at three schools and the resulting injuries to employees. These injuries included soft tissue and skin injuries (such as bruising, contusions, cuts, scratches) and psychological injuries.
At the first school, a staff member working in the kindergarten suffered multiple injuries from students identified as having disabilities, complex needs and challenging behaviours. The staff member reported injuries on multiple occasions and the Education Directorate offered some support. The injuries ultimately resulted in an accepted compensation claim for a psychological injury.
At the second school, a kindergarten teacher was hospitalised after they were kicked by a student who had been involved in multiple violent incidents throughout the year. Shortly after, a number of other staff were involved in incidents with a kindergarten aged student with complex needs and behaviours. They were bitten, scratched, punched and kicked. One of the staff members was pregnant at the time and was struck on her abdomen.
At the third school, the incidents involved a high school student who was identified as having challenging behaviours that presented an extreme risk staff and to others. The student attended school part-time as a part of their risk management plan. This student threw a computer monitor at a teacher, narrowly missing them, as well as abusing, threatening and assaulting the teacher. Teachers at this school were not provided with adequate training on how to reduce or avoid incidents of violence.
For each of these schools, the risk assessments that were undertaken and the individual learning plans and behaviour management plans were not effective. In addition, it was considered that the training offered to staff was inadequate. The staff members at each school continued to suffer harm despite the schools attempting to take steps to rectify the identified risks.
A working group was formed among stakeholders (including school staff, Education Directorate staff and the union) and new policies dealing with occupational violence were developed.
The Education Directorate also signed an undertaking that included the committing:
- approximately $7.67 million to developing the Occupational Violence Safety Management System program, a significant proportion related to the development of sensory spaces in schools for staff to support students with complex needs, and professional learning to support schools in creating sensory spaces
- a further $2.225 million to training and communications initiatives
- another $100,000 to strategies to deliver community benefits by working with parent associations to raise awareness about occupational violence in the education sector.
Interestingly, while the Work Health and Safety (WHS Undertakings) Guidelines 2018 (No 1) (ACT) provide that the cost of activities associated with enforceable undertakings 'may be substantially higher than the value of the fine a court may impose for the matter', the estimated costs of this undertaking are substantially higher than any undertaking previously recorded.
LESSONS FOR EDUCATIONAL INSTITUTIONS
The undertakings serve as a reminder to educational institutions that risks to the health and safety of workers in the workplace need to be adequately identified, assessed and controlled. There can be significant and costly consequences for failing to comply with these duties.
It is not sufficient for educational institutions to simply to devise behaviour management plans and other controls to address risks. Schools and other educational institutions with obligations under workplace health and safety legislation must also ensure adequate communication, training and supervision to implement any plans, and ensure those plans are adjusted as required, particularly where there is any incident or change in circumstances.
Incidents involving student violence often go hand in hand with potential discrimination. In circumstances where there is conflict with other parties about how to best implement behavioural management plans and other controls for individual students, educational institutions should seek legal advice. If you would like to discuss your educational institution's obligations under workplace health and safety legislation or any other aspect of behaviour management plans with our team, please contact partner Annie Smeaton or lawyer Samantha Ramsay.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.