Inspector Keniry v The Crown in Right of the State of New South Wales (Department of Community Services) [2002] NSWIRComm 349

Industrial Relations Commission of New South Wales

CITATION : Inspector Keniry v The Crown in Right of the State of New South Wales (Department of Community Services) [2002] NSWIRComm 349 PROSECUTOR: Inspector Anne Keniry PARTIES : DEFENDANT: The Crown in Right of the State of New South Wales (Department of Community Services) FILE NUMBER: IRC 3863, 4018, 4019, 4020, 4021 and 4022 of 2000 CORAM: Haylen J Occupational Health and Safety Act 1983 - six separate charges under s 15(1) - offences occur in operation of group homes for physically and intellectually disabled - pleas of guilty - substantial dispute as to relevant facts - effect on discount for early plea - essential facts and elements of offences demonstrate seriousness of offences - aggressive and assaultive behaviour leads to injury of employees - employees retired medically unfit following incidents of assault - aggressive and assaultive behaviour not an uncommon feature of the work - need for employers to be pro-active in ensuring safety and welfare of its employees in circumstances where risk is known and unlikely to be able to be controlled - no mitigating tension between statutory responsibility for home clients and obligations to employees under OHS Act - totality principle applied - approach recognises course of conduct over a year and similarity of acts and omissions - separate incidents demonstrated need for action to protect employees - separate fines imposed CATCHWORDS :

Occupational Health and Safety Act 1983 s 15(1) Occupational Health and Safety Act 2000 s 121 LEGISLATION CITED : Mental Health Act 1990 Disabilities Services Act 1986 Crimes (Sentencing Procedure) Act 1999 s 10 s 22 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at 644 [77] Cameron v R (2002) 187 ALR 67 at 68, 69 paras 14-15, 20 -23 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 Crown in Right of the State of New South Wales Department of Education and Training) v Keenan (2001) 105 IR 181 Department of Mineral Resources of New South Wales v Kembla Coal and Coke Pty Ltd at 27.2 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 210.7. Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474 Inspector Barnard v Rail Infrastructure Corporation (No 2) [2002] NSWIRComm 107 at paragraph 33 Inspector William Keenan v Kyogle Council [2002] NSWIRComm 137 at paragraph 81 per Glynn J Inspector Roy Thomas Milligan v Roads and Traffic Authority unreported, Fisher CJ, 29 August 1996 at 14 Pearce v The Queen (1998) 194 CLR 610 CASES CITED : R v Ellis (1986) 6 NSWLR 603 at 604 R v Thomson (2000) NSWLR 383 at 419 Winchester (1992) 53 ACrimR 345 at 350 WorkCover Authority of New South Wales v Atco Controls Pty Ltd. (1998) 82 IR 80 at 85 WorkCover Authority of New South Wales (Inspector Batty) v The Crown in Right of the State of New South Wales (New South Wales Department of Education and Training) [2000] NSWIRComm 181 WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Ltd, unreported, Schmidt J, 25 February 1994, at 12.2 WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in Right of the State of New South Wales (Police Services of New South Wales) (No 2) (2001) 104 IR 268 at [24] WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 3) (2002) (2002) 112 IR 141 WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Ltd, unreported, Schmidt J, 25 February 1994, at 12.2 WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service [2002] NSWIRComm 44) WorkCover Authority of New South Wales (Inspector Searle) v Western Sydney Area Health Service (2001) 111 IR 414 at paragraph 29 WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail authority of NSW [2000] NSWIRComm 179 WorkCover Authority (NSW) (Inspector Stewart) v The Crown in Right of the State of New South Wales (Department of Education and Training, Department of Juvenile Justice and TAFE) [2002] NSWIRComm 259 at 45 HEARING DATES: 11/06/2001; 11/07/2001; 06/03/2002; 06/04/2002; 06/05/2002; 10/18/2002 DATE OF JUDGMENT: 12/12/2002