A not-for-profit organisation providing accommodation and care services for young men with disabilities has been fined $72,000 after one of its staff was sexually assaulted whilst at work by a client in Murray Bridge.
A SafeWork SA investigation found that SA Support Services Incorporated breached its duty to ensure the health and safety of workers it engaged while they were at work.
The SA Support Services staff member was working a night shift in June 2020, which required her to stay overnight at the residence of a client.
A client from another SA Support Services residence entered the premises about 8pm and grabbed the support worker from behind, placing his right hand around her neck and his left hand around the left-hand side of her waist.
The client then forcibly took the worker through the kitchen and living area into the office area of the residence.
He then attempted to remove some of the support worker’s clothing but when the client living in the residence appeared in the doorway of the office, the man left.
In 2019 a child and adolescent psychiatrist had provided the opinion that the client suffered from an intellectual handicap, had a psychopathic-type personality disorder, posed a severe danger to others, and required a high level of supervision and support.
SA Support Services knew of this risk but failed to adequately address it.
A draft risk plan was created in November 2018 in relation to the client and identified that staff should ensure that he had no contact with vulnerable or young females and contact with all women should occur with another staff member present.
In November 2019, the draft risk plan in relation to the client was converted into a risk profile identifying a range of “behaviours of concern” and supports which could be provided.
The risk assessment process was clearly inadequate to identify and address the risk of sexual and physical assault.
In her Victim Impact Statement, which was read to the court, the support worker said it was the lack of information about the client’s behaviour that led to the seriousness of the incident.
She said there was a need for staff training, regular workplace health and safety meetings where staff concerns can be discussed, mobile duress alarms for staff, and ensuring that clients received specialised supervision when appropriate.
In its submissions, SA Support Services said it had taken positive steps prior to the incident, and it was not a case of it not doing anything to identify and address risks, it was a case of the defendant simply not doing enough.
SA Support Services had previously applied for additional NDIS funding for this client and said, that if the funding had been obtained, then likely this incident would not have occurred at all.
In his sentencing remarks in the South Australian Employment Tribunal on Tuesday, 20 December, Deputy President Cole said the offending was ‘objectively serious’ as the support worker was on her own in the workplace without knowledge of the client’s propensity for aggressive sexual behaviour.
‘It appears that only the fortuitous arrival of another client deterred the client from continuing with his attack,’ he said.
‘One of the very straightforward measures which should have been employed, was to inform all employees of the defendant of the risk posed by the client.
‘Appropriate policies in relation to the securing of doors should also have been in place.’
Deputy President Cole imposed a fine of $120,000 before applying a sentencing discount of 40 per cent, which reduced the fine to 72,000. Support Services SA was also ordered to pay a victims of crime levy and costs of $2,918.
Support Services SA raised concerns that the recording of a conviction may affect its NDIA funding.
Deputy President Cole said its good record and the unlikelihood of it reoffending needed to be balanced against the nature of the offence.
‘I accept that this is not a case where the defendant took no steps at all to protect those who might be at risk from the behaviour of the client. However, its measures were seriously deficient,’ he said.
‘The offending in this case is a serious breach of a work health and safety statutory requirement. A conviction will be recorded.’
SafeWork SA Executive Director Martyn Campbell said this was a perfect example of the emergence of sexual violence in workplaces.
‘It is vital that employers identify the risk of physical and sexual violence, harassment and discrimination in workplaces,’ he said.
‘They must eliminate the risk or, if that is not possible, reduce it as far as reasonably practicable. Part of the solution is to consult workers and provide adequate information and training to employees.
‘It is not good enough to have plans in place, those plans need to be fully considered, implanted and senior leaders need to verify the controls are working.
‘A crucial aspect from this case is that staff need to be made fully aware of the risks and the controls to mitigate them.’
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