Residential care provider fined for failing its health and safety duty

Residential care provider fined for failing its health and safety duty

Residential care provider fined for failing its health and safety duty

 

A residential care provider has been prosecuted and received a fine for failing to comply with its health and safety duties by exposing two female staff members to a risk of serious injury or illness.

The provider, Marist Youth Care Limited (Marist Youth), is a not-for-profit, non-government organisation (NGO) that operates as a charity providing residential care for young persons in New South Wales. As part of its services, it operates 12 Intensive Therapeutic Care Homes (ITCHs) across the state, which house up to four young persons with high needs.

Joan House was an ITCH operated by Marist Youth in Moorebank, a suburb in western Sydney.

In addition to male workers, Joan House employed two female direct care workers to perform shifts at the house. Their typical duties included helping residents with cooking, housework, administering medication, facilitating activities and transport.

At least three young persons were placed at the facility by Marist Youth and were known to be capable of physical aggression and displaying inappropriate conduct and behaviours, particularly towards females.

Over several years, the female workers were the recipients of various experiences at the house, including:

      • Sexual touching;
      • Inappropriate comments;
      • Being called names such as ‘slut’, ‘bitch’ and ‘whore’;
      • Requests to perform sexual acts;
      • Being physically grabbed;
      • Threatened with violence.

Marist Youth failed to inform any of the workers of the risks posed by the youths. Regular requests for additional male workers on particular shifts were largely ignored.

As a result of working at the facility, Ms S was diagnosed with anxiety and post-traumatic stress disorder (PTSD), suffered panic attacks, and was deemed unfit for any work.

Her female colleague was diagnosed with PTSD, generalised anxiety disorder and major depressive disorder. She is awaiting a decision on a workers’ compensation claim.

District Court Judge Andrew Scotting noted,

“The pleaded risk was that Ms S and Ms N suffered serious injury or illness arising from work-related violence perpetrated by a resident of Joan House. The offender was aware that each of the young persons was a potential source of work-related violence for the workers at Joan House”.

As Judge Scotting concluded,

“The likelihood of the risk occurring was high … The potential consequences of the risk were serious injury or illness to two female workers … The risk of work-related violence to the workers could be minimised but not eliminated”.

In determining an appropriate penalty, Judge Scotting noted that Marist Youth did not have any prior convictions, accepted responsibility for their failures, displayed genuine remorse and contrition, and accepted a guilty plea.

He imposed a fine of $30,000, recorded a conviction, and required Marist Youth to pay the prosecutor’s costs amounting to $140,000.

SafeWork NSW v Marist Youth Care Limited – NSW Caselaw 11 March 2024

For queries about workplace health and safety, duty of care, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 436.0524

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