Businesses that operate in care industries often face significant challenges, including funding and staffing issues. While these may be factors that courts consider in applying penalties for breaches of workplace health and safety obligations, these challenges do not limit an organisation’s obligations under workplace health and safety legislation.
On 11 March 2024, Marist Youth Care Limited (MYC) was convicted in the New South Wales District Court and fined $300,000 for breaches of the New South Wales Work Health and Safety Act.
The prosecution arose out of failings by MYC to take reasonably practicable steps to ensure the safety of workers engaged in providing care services to young people.
MYC is a government-funded not-for-profit organisation that provides residential care for young people who are under the care of the State.
The young people involved in MYC’s program have experienced significant and complex trauma, have often had interactions with law enforcement and the court system, and have behavioural, health and developmental issues.
The case involved three young men who the Court found MYC were aware (or ought to have been aware) presented a risk of work-related violence, including a risk of assault and inappropriate sexual behaviour towards female workers.
Two female workers were rostered to perform shifts at the facility operated by MYC and both were subjected to high degrees of verbal abuse, significant threats of physical violence, demeaning and inappropriate explicit sexual comments, physical touching and what the Court referred to as “sexual touching”.
Examples of threats of violence include one situation where one of the young people pointed a knife towards the Area Manager and threatened to “gut her like a pig”. On another occasion, when one of the workers tried to flee the facility having been barricaded inside the office and threatened to be killed, two young people blocked her from accessing her car and further threatened her. When she was eventually able to get into her car, one of the young people climbed into the car, sat on her lap and touched her inappropriately. When one of the young people threatened and ran after another worker, the first worker was able to close her car door and lock herself in the car, but she was unable to drive away because there was a young person sitting on the bonnet of the car and another young person sitting on the boot.
The allegations against MYC included the failure to conduct a risk assessment of the potential risk of violence and sexualised violence and the failure to ensure male staff were engaged to provide care at the facility.
As a result of the behaviour, they experienced over a period of ten months, the two female workers suffered serious psychological injuries that impacted significantly on their lives, including post-traumatic stress disorder.
The workers had complained about the treatment they were subjected to, both in meetings, directly to their immediate management and via an electronic reporting system. The Court noted:
"Female workers raised their concerns [with their manager who] told the female workers that he would raise their concerns with the Area Manager, that he was seeking extra help from management but not getting it. Workers observed that he was frustrated by the situation."
An especially serious incident of sexual touching occurred on 22 April 2019, but was not reported until October 2019, when the matter was reported to MYC and also to the police. The young person involved in the sexual touching was arrested and then charged and convicted of two offences.
Once MYC became aware of the April 2019 incident, they took steps to remove the young person from the facility, made sleepover shifts permanent, removed female workers from the roster and conducted a risk assessment for the workers and other residents of the facility. The Court noted that:
"The situation was complicated [by the workers’] delay in reporting the sexual touching incident, for which I intend absolutely no criticism of her. [The young person's] serious misconduct in April 2019 went unchecked and when [MYC] became aware of it acted immediately and appropriately. It is likely that if the sexual touching incident was reported that the [period of offending] would have been shorter and the aggravating circumstances reduced."
Having pleaded guilty, MYC effectively acknowledged that it was reasonably practicable to conduct a risk assessment and to roster male workers to work with young people. The Court noted that undertaking the necessary risk assessments was an available step that would have caused “little inconvenience” for MYC.
The Court also recognised that the decision to engage male-only direct care workers was a reasonably practicable step, but not necessarily a “simple and straightforward one” from both a practical and a “care” perspective. From a practical perspective, it was difficult for MYC to transfer workers between facilities because of labour shortages.
From a care perspective, MYC needed to consider the impact that male-only care would have on young people’s development, and how they could engage with females in a healthy way.
In considering the sentence to be imposed on MYC, the Court recognised that MYC operates a large business in a difficult industry and provides an important service to the community, but recognised that organisations must take obligations for workplace health and safety seriously, and that the community is entitled to expect that both small and large businesses will comply with safety requirements.