The case specifically highlighted the importance of prioritising staff and student wellbeing when deciding whether to re-admit students involved in a serious incident at school. 

In this article, we explore the legal obligations owed by employers, particularly schools to staff, and we suggest ways to mitigate your potential liability.

Jason Morrison (Mr Morrison) was employed by the Tasmanian Department for Education, Children and Young People (The Department). He worked in a special school program at Rosny College (The College) in the role of "Classroom Leader". The College provides education to students who struggled to adapt to the regular secondary school curriculum. The Futures Program was conducted in a separate section of The College. Some of the students in the program had previously engaged in violent behaviour and had complex trauma in their backgrounds. 

Mr Morrison was employed between 2022 to 2024. During that time he was the victim of a violent assault by a student. He was also subject to threats of violence. In 2023 he intervened to stop a knife wielding student. In 2024, two students were fighting in the school car park and across a four-lane road, halting traffic. He intervened in that fracas. 

In view of his experience Mr Morrison asked that students involved in the incidents be removed from the College. The request was denied. The College assessed that the students had little other education options. When the students returned to campus Mr Morrison took stress related medical leave. He was subsequently diagnosis with an adjustment disorder with mixed anxiety and depression, linked to stressful and unsafe working conditions. He made a claim for workers' compensation. The claim was initially denied on the basis that reinstating the students was a “reasonable administrative action” under the Tasmanian Workers Rehabilitation and Compensation Act 1988.

Under the Work Health and Safety Act 2011 (Cth), employers are obliged to ensure, as far as reasonably practicable, the health and safety of their employees at work. This includes providing a safe working environment, maintaining safe systems of work, ensuring safe use of equipment, and consulting with workers about health and safety matters. Employers must also manage risks, provide appropriate training, and ensure adequate facilities are in place. Consultation regarding safety and risks is key to managing risk. Consultation should include staff, particularly those who might be directly impacted by a risk. Failure to meet these statutory obligations can result in penalties, including fines or imprisonment. These obligations are enforced by State and Territory regulators. 

In this case, Marshall AJ of the Tasmanian Supreme Court overturned the decision of the Tasmanian Civil and Administrative Tribunal, ruling in favour of Mr Morrison. Marshall AJ determined that the school’s decision to re-admit the students was not reasonable or made in a reasonable manner. 

In his Honour's reasons, Marshall AJ cited the school's failure to consult with the teacher about the decision (despite it having a direct impact on his wellbeing), and the lack of evidence regarding the implementation of any adequate security measures to prevent harm to staff was a considerable shortcoming in the decision to return the students.

The Court found that Mr Morrison's psychological injury was a foreseeable consequence of the school’s failure to take reasonable steps to ensure his safety, especially in light of the history of violent incidents.

His Honour's ruling centred around the principle that employers, including educational institutions, have a duty to provide a safe working environment for their employees. 

The Department was ordered to re-instate Mr Morrison's weekly compensation benefits, together with reimbursement of payments owed.

The ruling in Morrison serves as a clear reminder of the importance of consultation in risk management. Where employees may face violent or dangerous situations, for example in education, aged care, disability and support services, correctional services, health and allied health services, policing or security work, employers and PCBUs must take proactive steps to ensure safety. 

Engaging with employees about risks, risk management, demonstrating an awareness of risk and active measures to respond to risk are key. 

Failure to manage risk can give rise to injury. In the absence of consultation or demonstrated proactive risk management employers may face WorkCover claims and WHS prosecution. 

Where employers disregard the concerns raised by employees, without developing a clear risk management response, any injury or claim resulting from the concern identified by the employee will be difficult to defend. 

Strategies for minimising this risk include:

1. Duty of Care for Employee Safety: This case underscores the fundamental duty that employers in environments where people can pose a direct safety risk (for example in education, aged care, disability and support services, correctional services, health and allied health services, policing or security work) are legally obligated to provide a safe workplace and to consult with employees about safety risks. Employers must anticipate the potential effect of risks, such as violent behaviour, and take reasonable measures to mitigate these risks.

2. Consultation with Employees: One of the key failings identified in the case was that the school failed to consult with Mr Morrison before making a decision that directly affected his safety. Employers should consult with their employees, particularly those in high-risk roles, when making decisions that impact their personal safety. 

3. Implementation of Adequate Security Measures: The Court highlighted that the school had not implemented adequate security measures to ensure the safety of staff and students. Employers must ensure that proper security protocols, training, and resources are available, particularly in environments where violence or threats of violence are a possibility. This can include physical security measures, such as surveillance cameras and security personnel, as well as clear procedures and policies on how to manage violent behaviour.

4. Workplace Mental Health: The case also draws attention to the mental health impact of unsafe work conditions. Employers should be aware that psychological injuries can result from unsafe or stressful environments, and take proactive steps to prevent such injuries. This includes providing support for employees who are affected by stress or trauma in their role, and ensuring that they have access to mental health resources and counselling.

Our employment and safety team at Colin Biggers & Paisley can review and advise on your current policies and procedures in relation to employee safety in light of this recent decision.

Please do not hesitate to reach out to our Employment and Safety team if you are unsure whether it is appropriate to re-admit a student following a serious incident to ensure that you are aware of any risks that may arise and are prepared to manage such risks.