Tragic case highlights importance of emergency training and support
The Federal Court of Australia recently dealt with a worker’s disability claim that arose from a tragic incident at the workplace involving the death of a child.
The worker said she was discriminated against for the work-related injury and did not receive adequate support from her employer or its client.
She filed her first claim before the Australian Human Rights Commission (AHRC), but it was terminated. She then applied before the federal court.
The employee was a trained actor and has been a casual and part-time employee for Starlight Children’s Foundation Australia since October 2016.
She returned to work in a casual capacity with Starlight in May 2019. In her employment, she performed the role of “Captain Starlight” in a program delivered in hospitals to sick children to improve their well-being while receiving medical treatment.
In her role, she performed to children as different characters. Some aspects of the Captain Starlight program are delivered in a room at the participating hospitals called the “Starlight Express Room (SER).”
According to records, while the SERs are all within the premises of the hospitals participating in the program, it is unclear how much control the hospitals have over what is done in the rooms during the Captain Starlight sessions.
Essentially, the program’s objective is to provide enjoyable activities and entertainment to inpatient children at the participating hospitals.
The foundation described the activities in the SERs are facilitated by Captain Starlights, who deliver entertainment and distraction through performance, creative projects, gaming, play and fun.
Tragedy would strike on 5 August 2019, as the employee agreed to take a Captain Starlight shift at the Royal Children’s Hospital (RCH). According to the employee, she had only previously worked one-half day at the RCH. Usually, she worked at the Monash Children’s Hospital SER.
On this day, the actor’s manager had to leave to attend a meeting, and while her manager was away, a young boy, perhaps around 14 months old, came into the SER at around 11:00 AM. The child suffered from a heart condition requiring him to be attached to a specialised machine.
The actor was playing with the child when at one point, she looked down and realised she was covered in a large amount of blood, which she realised was coming from the child’s chest.
The child’s father began to apply pressure to the child’s chest and shouted at the actor to assist.
She then shouted to her colleague and asked, “What’s the number for Code Blue?”, with code blue being the code for a medical emergency at Monash.
The colleague replied, “777”. The actor rushed to the Control Room within the SER and dialled 777. But when the operator asked the actor, “Where in the hospital are you?”, she realised that she was “unfamiliar with the layout of the RCH.”
She replied, “We are on the ground floor in the Starlight Express Room.”
While waiting for a response team, the child’s father performed CPR and asked the actor why it was “taking so long for the medical team to arrive.”
Shen then dialled 777 two more times. Once the medical staff arrived, the actor and her colleague removed the remaining families from the SER.
When the actor’s manager returned, she sat with the actor for one hour, realising that the latter was “in shock.” She was then ordered to go home.
The child died the following day, and no inquest was conducted.
The actor was subsequently diagnosed with post-traumatic stress disorder (PTSD), and her WorkCover claim was accepted shortly after that. Her disability was the basis of her complaint for direct discrimination against her employer.
She said that Captain Starlights had “inadequate emergency and first aid training,” and there was “inadequate emergency assistance available from the hospitals.” She also said, “she should have access to specialist trauma counselling.”
She said she was “denied the kind of training and assistance which were the subject of her complaints, and this constituted adverse action” under the Fair Work Act.
She said the foundation “failed to provide her with appropriate psychological support, and this was also considered an adverse action.”
It also said the employer “failed to improve its training or procedures to address all the matters she had raised.”
In her application, the actor sought a range of relief, including declarations, compensation and penalties, to be made payable to her.
The actor’s direct discrimination complaint also questioned how Starlight treated her after the August 2019 event. It also covered the RCH and Monash’s alleged failures in properly training and preparing her for such emergencies.
In her complaint, she wrote:
“I still feel let down by the initial lack of proper counselling and support after the incident and inadequate changes implemented since I’ve returned, such as changes to protocols in regard to safety and increased training for Captains,” she said.
“Continuing to work in this role where I feel hyper-vigilant for everyone’s safety exhausts me and it is unfortunately taking a toll on my home life, relationships, sleep and general self-confidence. Also, some of the lack of reforms and being with children who remind me of the incident are still triggering for me and because of this myself and my health professionals believe it is in my best interest, and necessary for further recovery, for me to step into an alternative career,” she added.
She filed her complaint before the AHRC, but it was terminated. She then filed before the Federal Court of Australia, asking that it should take on the case. It should be noted that the worker has received WorkCover payments related to the August 2019 event.
The federal court said it was not “appropriate” to accommodate the actor’s case.
The court said it “echoed the sentiments of the AHRC that this whole situation arose out of a traumatic workplace incident,” saying that “it was obviously an even more traumatic and tragic incident for the family of the child involved.”
It found that based on the actor’s allegations, she was seeking workers’ compensation for an injury suffered, but it explained that she had already “been compensated for that through the WorkCover process.”
“While the worker-actor is likely to remain dissatisfied with Starlight’s conduct and with the approach taken by Monash and the RCH, and while her concern for the safety of other children in the Captain Starlight program is no doubt genuine, this decision brings an end to her attempts in this court to agitate her concerns about what happened after that incident,” the decision said. Thus, the federal court dismissed her application.
