Schools should be aware of the kinds of teacher conduct which may be considered to be bullying or harassment, the circumstances in which schools may be held liable and ways to manage the legal risks involved.

Introduction

School Boards and Principles should understand the risks a school faces if found liable for teacher negligence or malpractice claims. While schools are intended to be safe places for teachers and students, many students face bullying and harassment. Schools can face legal risks if teachers are found responsible for bullying or harassment of students.

What is bullying and harassment?

Teachers can be held responsible for bullying or harassment of students in a wide range of circumstances. Bullying and harassment can include:

Assault and sexual assault
Verbal abuse
Defamation and humiliation
Cyberbullying

However, it may not always be easy to determine whether a teacher's conduct can be considered to be bullying or harassment.

For example, in a recent case in New South Wales, a student claimed against their school with a range of allegations, including:

Not being given permission to go to the toilet
Being forced to complete group assignments by themselves
Having their belongings confiscated
Being held in detention and put on bin duty

While the case was settled before being tried in Court, it shows the range of claims that could be made against teachers.

When are schools responsible for bullying and harassment?

Schools have a legal duty to take care of the well-being and safety of students in their care. A school will be held negligent if it does not uphold this duty. However, it may be unclear when schools can actually be held responsible for bullying and harassment of students.

In a recent case in the Supreme Court of New South Wales, a student sued the State of New South Wales as the school authority in regards to psychiatric injuries from sexual assaults committed by a teacher at a public school. The school authority cross claimed against the offending teacher to be indemnified from the claim by the teacher.

In the circumstances, the student had been sexually assaulted off school premises and outside school hours. The Court found that while the school authority might have been aware that the student had a crush on the teacher, the school authority could not have been aware of the sexual assaults. The Court required the teacher to pay 90% of the judgment sum.

Importantly, the Court identified some factors which might show that a school is responsible for teacher-to-student bullying or harassment, including:

Whether the bullying or harassment takes place on school premises and/or during school hours
Whether the school is actually aware of the bullying or harassment
Whether the school monitors behaviour on premises during school hours
Whether the school takes any steps to prevent the bullying or harassment in circumstances where it appears there is a risk of it occurring, such as moving the student to another class

Be prepared!

Promote a safe learning environment where bullying and harassment will not be tolerated. This can prevent any incidents occurring in the first place.
Put anti-bullying and harassment policies in place, and educate your staff on the risks of bullying and harassment of students.
Monitor what happens on school premises, in school hours, so that any bullying or harassment behaviour is identified if it happens.
Take steps early if bullying and harassment occur, referring to your anti-bullying and harassment policies.

How can Sharrock Pitman Legal help me?

Remember when things go wrong, it can be hard to know the best course of action. If you need advice, please contact our Accredited Specialist Workplace Relations team. Call us today on 1300 205 506.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Samuel Ellemor

Samuel Ellemor is a Senior Associate and Accredited Specialist in Workplace Relations Law, with expertise assisting individuals, businesses and not-for-profit organisations across abroad range of employment, commercial and not-for-profit matters. Samuel can be contacted directly on (03) 8561 3316.

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Schools should be aware of the kinds of teacher conduct which may be considered to be bullying or harassment, the circumstances in which schools may be held liable and ways to manage the legal risks involved.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Avoiding teacher negligence or malpractice claims

Schools should be aware of the kinds of teacher conduct which may be considered to be bullying or harassment, the circumstances in which schools may be held liable and ways to manage the legal risks involved.

Introduction

What is bullying and harassment?

When are schools responsible for bullying and harassment?

Be prepared!