Inadequate management support
668 It was the prosecutor's case that on the evidence, it had been demonstrated that the risk of psychological injury being sustained by staff such as TAS Mary and TAS Su, was increased by the absence of, or inadequate, management support being provided to employees at Putland, to help them cope with what they were being exposed to, when working with detainees in class. This was disputed by the defendant.
669 It was the prosecutor's case that the expert evidence showed a body of literature and research into the link between such social support and its ability to mitigate occupational stress and employee susceptibility to psychological injury.
670 It was the defendant's case that the literature suggested that psychological injury could be linked to specified factors in a workplace, (alone or in combination), but that the mere existence of such factors did not establish the necessary causative link, for the purpose of criminal proceedings. General indicators such as staff morale, complaints, absenteeism, workers compensation claims, incident reports, school atmosphere and questionnaires were relied upon in the prosecution case, it was argued, because it had failed to establish any indicators from either TAS Mary or TAS Su, that were sufficient to have alerted the defendant that they might be at risk of injury, at the relevant pleaded dates.
671 I am unable to accept that argument. The defendant's policies recognised that its employees were at risk of psychological injury. Consistently with the requirements of the OHS Act, its policies also envisaged that staff would be able to raise and have safety concerns dealt with. It was the common view of the experts that management support, when employees had such safety concerns, would assist them in coping with what their work confronted them with, so as to prevent injury, although there was disagreement between them as to whether what was in place at Putland, provided the necessary support. Plainly, the provision of such support was a practical, proactive way by which the defendant could have protected its employees from sustaining a psychological injury. (See WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85.)
672 The evidence clearly showed that various of the defendant's paper policies, as well as various of its systems, were designed to ensure that adequate management support was provided to its employees, so as to ensure their safety and to prevent psychological injury, given that the risk which detainees' violence and other threatening behaviour posed, could never be entirely precluded. The implementation of these policies at Putland depended on the Principal. It was with this evidence in mind, that Ms Knox Haly's view, that even good social support provided by supervisors such as an A/P, could be undone by the absence of such support from a Principal, must be considered. To my mind, that is not only obvious, as a matter of logic, but on the evidence, an unavoidable conclusion. The defendant's practical system required safety concerns to be raised by a TAS with an A/P, yet the Principal dismissed and did not deal with these concerns, when raised with her by A/P Rebecca, who was TAS Mary and TAS Su's supervisor. In their evidence they each described their attempts to have their supervisor raise their concerns with the Principal. A/P Rebecca's evidence confirmed her failure. The Principal also repeatedly rebuffed attempts to raise such matters directly with her, even in relation to the system failures on 10 March. The evidence clearly showed that the required management support was not provided at Putland, at the relevant time, so far as TAS Mary and TAS Su were concerned.
673 The evidence was that safety was known at Putland to have been a matter of ongoing concern to staff, including TAS Mary and TAS Su, in the period leading up to the events in March 2004. Some staff were fearful. There was evidence that A/Ps had raised safety issues of concern to staff, with the Principal, who had dismissed them. A/P Rebecca, for example, explained in her cross examination that she had raised the question of concerns about the mix of students in class, the numbers in class and particular students in class and staff concerns about managing them and that the Principal's response was 'Maybe these people are in the wrong place, or wrong school, (sic) shouldn't be working here.' The concerns were not addressed or resolved.
674 Both the Teachers Federation and the PSA had pursued disputes about safety matters; staff had directly raised concerns with their unions about how the building programme was impacting on their safety in a number of ways; some staff had already taken stress leave, or had made workers compensation claims, for injuries suffered at work; there had been requests for staff to receive personal defence training, which the Principal had investigated, but had not been able to arrange. On Mr Armstrong's evidence, the defendant's District Office was also aware that psychological injuries were being sustained by staff at Putland.
675 There was no evidence of any steps taken by the defendant to investigate this situation at Putland, or to take any additional steps, to ensure that the safety of employees such as TAS Mary and TAS Su, was not being put at risk, given the way in which Putland was operating.
676 In Ms Koussa's report in relation to teacher Ron, Ms Koussa noted that the Principal denied any awareness of the 10 March incident and that she had told Ms Koussa, that she would need to investigate it further. On the evidence, the system in place at the school involved teachers and TAS providing misbehaviour reports immediately after an incident. Teacher Ron and TAS Mary's report was received by the A/P by 12.08 pm that day. A copy was kept in a folder at the school, so that it could be read by the Principal. The Principal never reading this report, explains perhaps why she gave the Department no serious incident report about the failure of the duress alarm system, as was required, and repeatedly brushed off TAS Mary's attempts to discuss with her, the failure to respond to the duress alarms sounded that day by teacher Ron and TAS Mary. Given, however, her own evidence of her conversation with teacher Ron on 10 March, when the Principal claimed she had advised him that he had been assaulted, her advice to Ms Koussa that she was not aware of the incident, cannot have been accurate.
677 Ms Koussa noted the Principal's view that teacher Ron was generally scared of students, which was reflected in how he allocated points, namely 'to prevent students from becoming angry'. This approach was inconsistent with the School Rules, on the evidence, but seemingly, was another matter which the Principal did not address. If true, it reflected a situation where the School Rules were known not to be operating in a way which could have ensured safety in teacher Ron's classes, where TAS Mary worked.
678 The Principal told Ms Koussa that she did not believe that teacher Ron's personality suited the Putland working environment. Contrary to what the Principal told Ms Koussa in relation to TAS Mary, she said in relation to teacher Ron, that 'incidents are many and go with the territory' of working with these students. This was undoubtedly correct, but the contradiction between this and what she had told Ms Koussa in relation to TAS Mary, namely that there were 'fewer critical incidents' at Putland and that 'staff tend to overreact when an incident occurs', was curious, particularly given that teacher Ron and TAS Mary worked together, delivering the General Education programme and had been involved in the same incidents in March 2004. Despite these views, it seems that the Principal also did not detect that teacher Ron might be at risk of psychological injury at work. She did note, however, that he had become increasingly concerned about the safety of staff working at the school and that he was a union representative.
679 As to TAS Mary, the Principal told Ms Koussa she regarded TAS Mary's capacity to be in difficult situations, to be declining, that she felt more hesitant and less safe and that it was overdue for her to look elsewhere for work 'for her own well being'.
680 A/P Rebecca was also nominated to speak to Ms Koussa about teacher Ron and TAS Mary. She told Ms Koussa that cumulative factors had led to teacher Ron leaving the school, including his treatment by another A/P, who had left at the end of 2003; a series of incidents of abuse of staff and the loss of his assistant TAS Mary, after the 15 March incident. She noted that on 10 March, the school had been left vulnerable, because many staff had responded to the assistance call regarding the escapees, leaving 'support thin on the ground'. This may explain the Principal's evidence, that immediately on her return to the School on 10 March, after pursuing the detainees, she was informed of a directive by Mr Muir of the DET, that in future, staff were not to leave Cobham in pursuit of escaping detainees.
681 A/P Rebecca told Ms Koussa that TAS Mary's work was excellent and that she was a very valued member of staff who had a 'big thing' about safety, but that the Principal did not acknowledge or support her concerns. The Principal did not regard the 10 March incident as serious, but that in her view, that incident and the 15 March incident were extreme.
682 In relation to TAS Su, the Principal expressed the view that she had problems 'working with our sort of kids'. She had understood the risks of working at Putland on an intellectual, but not emotional level, until directly involved in an incident. This was true of many staff. She also said TAS Su had problems forming relationships with detainees and indicated to them that she did not trust them, acting as a gatekeeper, rather than a support person. The Principal explained that the 15 March incident and the bomb scares were 'par for the course' at Putland and that she could not see how they would affect TAS Su, who was not directly involved. She could not remember an incident in which TAS Su had been involved the previous year. The Principal explained that a number of people raised concerns about feeling unsafe, including TAS Su, who spoke out at staff meetings. Yet, the Principal had not observed symptoms of distress on her part, other than 'the odd occasion where TAS Su was teary and felt like she was not coping', but not directly before she left in March 2004. The evidence was contradicted by Jane M and A/P Rebecca, who each described the BH incident as extremely serious, as it must have been, given his transfer to Kariong.
683 A/P Rebecca was nominated to speak to Ms Koussa about TAS Su. Her advice was that TAS Su felt undervalued and unsupported by the Principal, because safety was not changing at Putland. Some staff did not feel safe and TAS Su did not feel heard, when she raised safety concerns at staff meetings. She was a bit of an advocate for safety in meetings. The Principal cut her off and did not allow her to finish comments in meetings. A/P Rebecca's view was that the incident in TAS Su's class on 17 March was not a major one, but earlier there had been a series of extreme incidents. One in 2003, where there had been a fight between two students; the 10 March incident; the bomb scare and the 15 March incident. A/P Rebecca described TAS Su's behaviour on 17 March, after she left class and stated that 'What people do to survive here is leave, they don't see it changing'.
684 Ms Koussa's reports also confirmed that in March 2004, policies which were designed to ensure staff at Putland were not injured at work, were not in operation. Given the views which she expressed to Ms Koussa, the Principal was plainly aware that TAS Mary and TAS Su were both at risk of injury, in March 2004.
685 Had the defendant's 2000 'Guide to Occupational health safety and injury management', been in operation at Putland, steps which would have dealt with the risk so identified, would have been taken. That policy provided that 'stress is considered a psychological hazard and, within the context of a workplace risk management system, must be identified, assessed and controlled where possible'. It also required the Principal to know hazards in the workplace; to find ways to eliminate or control them; to warn employees about the hazards and to train them in safe work practices.
686 The evidence can only lead to the conclusion that the Principal was clearly aware of the hazards at Putland to which TAS Mary and TAS Su were succumbing in March 2004, given the risks to which they were repeatedly exposed at work, but did not act to deal with what she had become conscious of. The necessary management support of staff was absent. It cannot be doubted that the necessary causal connection between the defendant's acts and omissions, and the risk of injury to which TAS Mary and TAS Su were exposed in the period of the charge, was established.