Victorian nurse charged with working after positive COVID-19 test result

As we transition through and hopefully away from the COVID pandemic there will be much written about the response and its effectiveness as well as recommendations going forward. Legal proceedings are likely to shape what is written. On July 22nd, 2022, WorkSafe Victoria announced that an aged care nurse has been charged with two breaches of the Occupational Health and Safety Act following a COVID-19 outbreak.

WorkSafe alleges that between 26 July 2020 and 2 August 2020, the nurse reported for casual work shifts at an aged care facility after allegedly being advised not to attend work and then being made aware that she had tested positive to COVID-19.

She is charged with breaching section 32 of the OHS Act on 2 August 2020, in that, without lawful excuse, she recklessly placed, or may have placed, another person in danger of serious injury. The reason for this is that the nurse attended the workplace after returning a positive Polymerase chain reaction (PCR) test.

The nurse is also charged with breaching section 25(1)(b) of the OHS Act, in that between 26 July and 2 August 2020 by attending work after being advised not to she failed to take reasonable care for the health and safety of persons at the workplace.

It is not alleged that the nurse's actions resulted in the transmission of COVID-19 at the workplace she attended. The decision to prosecute has been made in accordance with WorkSafe’s general prosecution guidelines

https://www.worksafe.vic.gov.au/resources/worksafe-victoria-general-prosecution-guidelines

These guidelines require WorkSafe to consider whether there is sufficient evidence to support a reasonable prospect of conviction and whether bringing a prosecution is in the public interest.

The matter is listed for a filing hearing at the Moorabbin Magistrates' Court on 7 September.

In summary, WorkSafe’s health and safety prosecutions aim to deter non-compliance with Victoria’s health and safety laws and to prevent workplace and work-related deaths, injuries and disease. A prosecution may be brought regardless of whether a breach resulted in death, injury or disease. Health and safety prosecutions also aim to promote good occupational health and safety (OHS) values and practices. The key aim of WorkSafe prosecutions, therefore, is to deter non-compliance and to maintain the integrity of the workers compensation scheme.