CHIEF EXECUTIVE OFFICER OF DEPARTMENT FOR COMMUNITIES and YACHT HOLDINGS PTY LTD
[2012] WASAT 96
•24 APRIL 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: CHILD CARE SERVICES ACT 2007 (WA)
CITATION: CHIEF EXECUTIVE OFFICER OF DEPARTMENT FOR COMMUNITIES and YACHT HOLDINGS PTY LTD [2012] WASAT 96
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: 24 APRIL 2012
DELIVERED : 24 APRIL 2012
PUBLISHED : 10 MAY 2012
FILE NO/S: VR 57 of 2012
BETWEEN: CHIEF EXECUTIVE OFFICER OF DEPARTMENT FOR COMMUNITIES
Applicant
AND
YACHT HOLDINGS PTY LTD
Respondent
Catchwords:
Child care services - Disciplinary action - Failure to notify CEO of injury to child - Failure inadvertent - Appropriate penalty
Legislation:
Child Care Services Act 2007 (WA), s 29(2)(b), s 29(4), s 29(4)(d), s 30A
Children and Community Services (Child Care) Regulations 2006 (WA), reg 20, reg 20(1)(b)
Sentencing Act 1995 (WA), s 40, s 40(5)
Result:
Respondent ordered to pay fine of $2,000 and costs of $995
Category: B
Representation:
Counsel:
Applicant: Mr D Oliver
Respondent: Self-represented
Solicitors:
Applicant: Mr D Oliver
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The respondent admitted an allegation that it had failed to notify the CEO of the Department for Communities of an injury to a child which had required hospitalisation of the child. The failure was a breach of the regulations made under the Child Care Services Act 2007 (WA), and constitutes grounds for disciplinary action.
The Tribunal accepted that the breach was inadvertent and imposed a fine of $2,000. The Tribunal gave oral reasons at the hearing, which are reproduced (subject to minor edits and corrections) below.
Decision
This application alleges grounds for disciplinary action under s 29(2)(b) of the Child Care Services Act 2007 (WA), (CCS Act) and orders are sought from the Tribunal under s 29(4) of the CCS Act. The particular breach of the Act (which includes the regulations made under the Act) is of a breach of reg 20(1)(b) of the Children and Community Services (Child Care) Regulations 2006 (WA), which requires a licensee to notify the CEO of an injury to an enrolled child during a care session that results in the child being admitted to a hospital, the nature of the injury and circumstances in which it occurred.
The respondent, Yacht Holdings Pty Ltd, holds a licence to operate a child care service at 236 Fourth Street, Geraldton. A Mr Perham, the principal of the respondent, advises and I accept, that the respondent has carried on operations under its licence as a child care service for a period of 16 years and has no previous convictions for any breaches of the regulations or the Act.
On 11 November 2011, a three year old child who was enrolled at the centre climbed onto an unused fish tank, pulling it back onto himself, causing the tank to smash and resulting in what turned out to be a serious injury to his left toe. The child was taken to the Geraldton Regional Hospital on the day of the incident and treated. On 12 November 2011, the child was taken to and admitted into the Princess Margaret Hospital in Perth. On the Monday, 14 November 2011, the child’s mother advised Mr Perham that the child had been admitted to hospital. The applicant accepts that there is no suggestion or no evidence that Mr Perham was aware of the admission to hospital or the referral of the child to hospital at any time prior to 14 November 2011. Mr Perham, in his submissions to the Tribunal, says, and I accept, that he was not aware of the seriousness of the injury at the time it occurred although he was aware that the child’s toe had been cut and that he was not aware of the fact that the child required treatment in hospital.
It is not in issue that the respondent failed to notify the CEO as it was required under reg 20. The matter came to the attention of the CEO via other sources. I have heard this morning from Mr Perham who has repeated, and I accept, that he was not aware of the seriousness of the injury and that when he was informed of the true nature of the accident he spoke to the parents and then ascertained the child has been hospitalised over the weekend. He followed the matter up with the staff but he says that, by way of oversight, the requirement of reg 20 was not met. He says that it was not an intentional effort to avoid the responsibility under the Act.
I have also had the benefit of reading an email which was sent to an officer of the Department from the mother of the child which goes into the difficulties which the child has had in relation to the cut to his toe which are continuing. That has obviously been a fairly traumatic experience for both the mother and the child. Whilst that is undoubtedly the case, it has to be noted I think that the failure to notify the CEO has not in any way contributed to that level of trauma for either the child or the mother. I accept that, to the extent that there is an allegation in the email of some deceitful effort to try and avoid the responsibilities under reg 20, there is no basis for that conclusion on the materials that I have seen and in light of the submissions this morning from Mr Perham.
Obviously the requirement to notify of harm to an enrolled child is an important part of the overall regulation of child care services. There are extensive obligations, all of which are directed to ensuring that child care services are carried on in a way which minimises, to the extent possible, any risk of harm to children who are enrolled within those services. It is important that licensees are mindful of and observe the requirements of the regulations.
The maximum monetary penalty which can be imposed where the Tribunal finds that grounds for disciplinary action exist is $25,000 - CCS Act s 29(4)(d). Where, as here, the allegation is of an offence under the CCS Act, the penalty cannot exceed the relevant maximum fine for that offence - CCS Act s 30A.
The maximum fine provided for under reg 20 is a fine of $6,000. But as the applicant points out, s 40(5) of the Sentencing Act 1995 (WA) has the effect, because this is a corporate respondent, of increasing the maximum fine by a factor of five. The effective maximum in this case is therefore $25,000.
The applicant submits that a fine in the vicinity of $3,000 is appropriate. As I have already indicated I think that a breach of the regulations should be viewed seriously but I do not accept that that requires a fine in the amount submitted by the applicant in the circumstances of this case. I accept that the error was one of inadvertence on the part of the licensee rather than deliberate intention to breach the regulation. Whilst it is incumbent on licensees to be mindful of their obligations, obviously it is a less serious matter where there is inadvertence rather than deliberate flouting of the rules.
I think in all the circumstances, a fine of $2,000 adequately represents the seriousness of the conduct and serves the purpose of the disciplinary penalties of demonstrating that these matters will not be treated lightly and are pursued appropriately by the Department. So for those reasons there will be a fine of $2,000. Costs are also sought and consistent with the approach that the Tribunal generally takes in relation to disciplinary matters it is appropriate that there be an order that the respondent pay the applicant's costs.
Orders
1.The respondent is fined $2,000.
2.The respondent is to pay the applicant's costs fixed at $995.
I certify that this and the preceding [12] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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