Federation wins OH&S prosecution

By Joan Lemaire

The Department of Education and Training (DET) failed to ensure the health and safety of teachers at Dover Heights High School on December 10 and 11, 2001, the NSW Industrial Relations Commission has found.

The prosecution by Federation arose from a number of violent incidents by a male student resulting in injuries to a number of teachers at the school.

A male student referred to as AL enrolled at Dover Heights High School in October 2001. The student had a history of violent and challenging behaviour which commenced in primary school. During the short time he was at the school there were a number of incidents and he had been suspended for violent behaviour.

On December 10, the male student and another student appeared to be under the influence of "something" and a bottle with alcohol was confiscated. AL was aggressive to staff, hurt himself and had to be restrained. An ambulance and the police were called, he was taken to hospital and interviewed by the police while he was there.

On December 11 AL returned to the school. He behaved aggressively and refused to leave when requested. Then he ran into a classroom and held a knife approximately 18cm long to a student's throat. He was restrained by a teacher, then broke free and ran through the school down to the lower playground where two teachers were supervising a game of softball. The teachers and class were forced to scale a one metre fence to flee from AL who had picked up a baseball bat as well as the knife and chased the class making threats.

He was initially restrained and disarmed by a group of building workers and later arrested by police.

Justice Kavanagh found that on both December 10 and 11 DET failed to undertake an adequate risk assessment of AL given his attendance at school, failed to ensure a complete medical, psychological and psychiatric assessment of AL and failed to inform or consult employees about previous incidents.

In relation to December 11 Justice Kavanagh found that AL should have been suspended, and that the DET had failed to have an adequate communication system to alert the teachers in the lower playground.

Justice Kavanagh complimented the work undertaken by the teachers at the school including the counsellor, the welfare committee and the year coordinators. She said: "They served the school very well in identifying AL as having a behavioural problem and assisted in his assessment." She noted that this assessment, was not a risk assessment.

"There was no assessment conducted for the safe working of the teachers as a result of AL's attendance at the school," Justice Kavanagh said.

Part of the evidence presented in the case was DET's policies and procedures which were current in 2001 including Guidelines for the Management of Serious Incidents and the Occupational Health Safety and Injury Management Manual for Principals and Workplace Managers.

Justice Kavanagh considered these and said: "Under the paper systems adopted by the defendant, some of the responsibilities fell to the school and its Committees and some to their District Guidance Offices. However, a defendant cannot delegate its obligations under the OHS Act. The defendant had a non delegable obligation to ensure safe working at school."

In relation to the defence raised by the DET Justice Kavanagh said: "The defendant has always conceded it had control over the school and given its own policy contains a number of strategies to meet the identified risk it [sic] difficult to propose it was impractical to make provision against acts of violence against teachers by a student with behavioural problems."

"There were reasonable steps available to avoid the identified risk and it was reasonably practical to implement such steps. A minimisation strategy such as suspension was cost free. While the alternative placements including the placement of a Special Support Teacher/Behaviour may have been an added cost to the defendant, it does not argue, nor could it, that such a cost was prohibitive."

Justice Kavanagh set June 1 for the hearing on the penalty to be imposed on the DET for breaching their obligations under the Act.

The judgment makes it very clear that violent behaviour is an occupational health and safety issue. It is not sufficient to just concentrate on the particular student's needs and hope that this will make him or her cease the violent behaviour. A clear strategy aimed at controlling or eliminating the risk this behaviour presents to staff and students must be articulated.

Federation has advised members that reports of violent behaviour should be referred to the Occupational Health and Safety Committee as well as the welfare and discipline committee. This means the individual needs of the student can be assessed and supported, while at the same time, ensuring teachers and other students have a safe working and learning environment.

Joan Lemaire is an Industrial Officer.

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