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Education Law Today

Do you manage a School Building Fund? Taxation Ruling 2013/2 is a must read!

By Anna Lewis and Bill d'Apice on Posted in Funding, General, Governance

School buildingSummary - Taxation Ruling 2013/2 was released last week clarifying the way in which s 30-15 and Item 2.1.10 of the table in s 30-25(1) of ITAA1997 apply to persons who make a gift or contribution to a public fund which purports to be a school building fund.

Last week the ATO on behalf of the Commissioner of taxation released TR 2013/2 regarding school building funds.

In particular, the ruling discusses factors relevant to determining:

  • What a school or college is for the purposes of Item 2.1.10;
  • Whether a building is used as a school or college by an entity; and
  • Whether a fund has been established and is being maintained solely for providing money for the acquisition, construction or maintenance of a building used as a school or college.

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Rising Class Sizes and Rising Duty of Care – 5 Tips for Staff

By Raymon Anderson and Alex Kohn on Posted in General, Liability & Risk, Policies & Procedures

Students with teacherSummary - 20% rise in class sizes equals 20% rise in efforts by staff to discharge their duty of care.

Staff obligations on the rise

A full class of students can be a handful for teachers, even more so during practical activities and excursions. Injured plaintiffs commonly allege that educational institutions have breached their duty of care to students by failing to properly supervise and highlight the need for staff to remain vigilant.

Projected increases of class sizes by more than 20% are likely to place additional burden on the already difficult job staff have to continually supervise, monitor, risk assess and trouble shoot issues as they arise.

This projected increase in class sizes arises from a report released by Infrastructure NSW which has suggested existing schools accommodate 90% of the projected increase from 752,000 students to about 1,000,000 students.

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Accidents During School Excursions

By Alex Kohn on Posted in Liability & Risk

school girls on a camping excursionSummary - School excursions must be carefully planned to avoid the risk of litigation arising out of an accident.

A combination of heightened excitement and less formal activities often leads to the unfortunate consequence of significant injury during the course of a school excursion.

It must be remembered that, if an accident occurs during an approved school excursion, then the school may be held liable if it was negligent because the teacher-pupil relationship is still in existence.  This is the case even though the excursion might be on a weekend or during school holidays.

Although the consent of parents is invariably obtained before an excursion, such consent will not entitle the school to take a pupil on a trip fraught with danger.

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Excursions: Schools should check Insurances

By Stewart Roberts on Posted in Liability & Risk

SkierSummary - Schools should check insurances of third party service providers before excursions or sporting activities.

We have previously discussed the case of Harris.  But to recap, Mr Harris sustained a back injury in the course of a school excursion to the snow.  Students who were “beginners” were placed in learn to ski classes which were conducted by ski instructors employed by Perisher Blue at Smiggins Hole.  The teachers from the school took no part in supervising the classes.  Mr Harris was a beginner.  He sustained a back injury when he lost control going over a mound while descending a gentle slope, during the learn to ski class.  He landed in a ditch.

Mr Harris sued the school and later joined Perisher Blue.  He succeeded in establishing that it was negligent to conduct a beginners’ class in an area where there was a mound and a ditch.

The District Court Judge who heard the case attributed the negligence wholly to Perisher Blue and found that the school and its teachers had not been negligent.  However, relying on section 5Q of the NSW Civil Liability Act, the Judge found that the school was vicariously liable for the negligence of Perisher Blue and therefore entered judgment against both the school and Perisher Blue.  However, the Judge ordered Perisher Blue to indemnify the school for its liability to the plaintiff.

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Educational Malpractice – why are such cases rare?

By Stewart Roberts on Posted in Liability & Risk

School girl with booksSummary - It is very difficult for a disgruntled student to succeed in an educational malpractice claim.

It is rare to see cases of educational malpractice especially when compared to claims alleging negligence against other professionals such as medical practitioners, lawyers, valuers, accountants and financial advisers.

So, when a case is brought, it often receives publicity such as the case recently before the Victorian Court and Administrative Appeals Tribunal between Geelong Grammar School and a former student.  The former student is seeking compensation for fees paid and relocation costs because she blames the school for failing Years 9 and 10 Mathematics and missing out on enrolment in law at Sydney University.  The former student alleges that she drastically turned around her exam results after enrolling at Crows Nest TAFE in Sydney. Geelong Grammar School is defending the claim.

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Board of Education Cancels School Registration – Criminal Liabilty of Principal

By Raymon Anderson and Alex Kohn on Posted in Commercial Relationships, General, Governance, Policies & Procedures

cancelled stampSummary - High School sues Board of Education for cancellation of registration and accreditation due to poor enrolment, attendance and program quality.

Strike First – Cancellation by the Board

The Board of Studies has recently recommended to the Minister for Education that ANC High School Pty Ltd (School) have its non-government school registration (license to operate) and accreditation cancelled, the result of which being that the school could no longer nominate candidates to be awarded a Higher School Certificate.

Strike Back – Legal Proceedings by the School

The School applied to the Administrative Decisions Tribunal for a review of those decisions, continued to operate during the legal proceedings and was ultimately successful but on a limited basis and not to the extent they had hoped.

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Educational Institution Succeeds in High Court over the Discipline of an Employee

By Raymon Anderson and Alex Kohn on Posted in Employment, General, Policies & Procedures

Send email buttonSummary - Employee fired after email to all staff alleging serious misconduct by co-workers – Employee fails on High Court appeal.

The Finding

On 7 September 2012, the High Court Of Australia allowed an appeal by Bendigo Regional Institute of Technical and Further Education (Bendigo Education) who argued that it was not illegal to fire an employee, Gregory Barclay (Mr Barclay) shortly after he sent an all staff email alleging serious misconduct by a number of other employees.

The Facts

Mr Barclay emailed all staff alleging several employees had fraudulently prepared company documentation in preparation for an audit. The email did not name the employees and so defamation, as briefly discussed in my previous article “Online Social Networking – Issues for Staff & Students” was not an issue.

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Student Sues School over 99.95 HSC Mark – Lessons for Schools and Students

By Raymon Anderson and Alex Kohn on Posted in Discrimination, Liability & Risk, Policies & Procedures

High-school students sitting an examSummary - Student lost legal case involving discrimination in sitting for her exams and ordered to pay costs.

Facts

Ms Wong achieved fifth place in the state in her HSC chemistry exam when she sat that exam one year early, while still a year 11 student. Upon the completion of year 12 she obtained a university entry rank of 99.95 and gained entry into a combined Science and Medicine degree at the University of Sydney.

So why were complaints and legal proceedings brought by Ms Wong against her school and the Board of Studies?

Ms Wong alleged she had been discriminated against on the ground of disability, that reasonable accommodation had not been provided and that had such accommodation been provided, she would have achieved higher marks than what she achieved.

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Volunteers are employees/workers – new WHS/OH&S laws and responsibilities

By Raymon Anderson and Alex Kohn on Posted in Employment, General, Liability & Risk, Policies & Procedures

Volunteer Sign-UpSummary – Under new WHS laws company officers have new obligations to workers including volunteers, with greatly increased penalties for non-compliance.

Why do I need to know about the new national WHS laws

Volunteers such as canteen assistants, parent volunteers, P & F volunteers and event support personnel now fall within the definition of worker, in the same way employees are captured by that definition. The obligations of an employer or other Person Conducting a Business or Undertaking (PCBU) has therefore increased significantly and so too have the penalties for non-compliance.

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What to do if you are Subpoenaed: Practical Advice

By Alex Kohn on Posted in Employment, General, Liability & Risk

JudgeSummary - Dealing with a subpoena to produce documents or attend Court need not be the terrifying experience many believe it to be – here are some practical tips.

Types of Cases in which Educational Professionals are Commonly Subpoenaed

Those involved in the administration of educational institutions, particularly schools, are often subpoenaed in a range of matters including criminal matters, family law disputes, civil disputes involving third parties and civil action against the school authority.

The educational institution may receive a subpoena to produce a document or to attend court to give evidence.

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