In July, WorkSafe prosecuted Multi Cultural Youth Education Support Services Limited (MCYESSL) – the operators of a South Australian college – for a 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.
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 a breach of its duties under the Work Health and Safety Act 2012 (SA). The breach pertained to the failure to provide safe systems of work for the excursion and a failure to conduct appropriate risk assessments. This action was taken after an investigation by the regulator revealed the following issues:
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.
Rock fishing was not included in the risk assessment, even though the camping location provided for rock fishing.
Life jackets were not provided even though the camping location was by the sea.
Non-slip shoes were not considered even though the camping location provided for rock fishing.
MCYESSL pleaded guilty to the charge. Notwithstanding the guilty plea, the Tribunal still gave the school a significant fine 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.
'A timely and tragic reminder'
An employment and safety lawyer says the case is “a timely and tragic reminder” for schools and support services to implement appropriate risk assessments and to seek legal advice early when an incident occurs and engage in an effective strategy with the safety regulator.
Adam Foster is a partner in Colin Biggers & Paisley's employment and safety team said the level of education and support senior school leaders have when it comes to conducting risk assessments is mixed.
“There are some staff who are thoroughly trained in using tools such as Risk Assess and other like tools for ensuring that a correct risk assessment is undertaken,” Foster told The Educator.
“In the decision mentioned in the MCYESSL case, it became apparent on the facts that persons suitably qualified to conduct a risk assessment did not conduct the risk assessment, and this meant that the risk assessment tool was underutilised.”
Foster said any risk assessment always has the same key ingredients: identifying the hazard, and those affected by the harm, evaluating the risks and decide on precautions, implementing any risk or hazard reduction strategy and then reviewing your risk assessment.
“For schools, this must look like a person who is specifically trained to conduct risk assessment with access to appropriate software and/or tools to complete the assessment. It should also be a hazard assessment that properly identifies the risks associated with the activity to be undertaken,” he said.
“Finally, knowing when to sense check and get legal advice is the other necessary piece in the risk assessment puzzle.”
Another important lesson for employers, says Foster, is to consider an appropriate strategy for dealing with the regulator, as it may be viewed favourably with respect to potential fines and prosecution.
“Legal advice [early] must be [and indeed is] an essential part of the strategy when dealing with the regulator,” he said.
“It is best practice to engage with legal advice immediately after an incident has occurred to ensure that the school is properly and fully advised as to potential risks flowing out of any incident, and that advice is protected by legal professional privilege.”
With the regulator's emphasis on the vulnerability of children, Foster said it is important for schools to effectively communicate with parents about the robustness of their risk assessment processes and the qualifications of the staff involved.
“Assuming a school has a risk assessment process, there are a couple of easy ways to report on the adequacy and robustness of risk assessment tools,” he said.
“Firstly, report on the process - explain in communications to families what risk assessments are in place. Secondly, report to your governance body on a regular basis about risks identified and assessed, the people who are qualified to conduct the risk assessment and (and this is often forgotten) what steps you are taking to improve your processes.”