By Adrian Miedema
A student’s history of violent outbursts justified a teacher’s work refusal, the Ontario Labour Relations Board has decided.
The teacher actually engaged in two work refusals: one when the student became violent (which was resolved by removing the student from the teacher’s class), and the second the next day when the teacher realized that the student was back in her class and that the removal had been only for the remainder of the previous day.
The student was in senior kindergarten. He had engaged in violent behaviour at the school in the previous school year, including poking another student in the eye with a stick. In senior kindergarten, the student had more violent outbursts including throwing a stool at the teacher; punching another student; trying to bite and scratch the teacher; and kicking the teacher and scratching her face and eye, for which she was required to go to the hospital. The teacher said that it was impossible to predict when the student’s outbursts would occur.
On the day of the teacher’s first work refusal, the student began to push another student. Anticipating an incident, the teacher had the other students removed from the classroom. The student was left with the educational assistant (EA), whom the student began to kick and hit. The student also threw toys at the door. The EA was able to calm the student down. While the student was in the classroom with the EA, the teacher went to the principal’s office and said that she (the teacher) was exercising her right to refuse unsafe work. The principal, after consulting with the teacher, removed the student from the class and spent the rest of the day in the principal’s office.
The next day, the teacher came to school and found the student back in her class. She again refused to work, saying she was concerned that the student would have another violent outburst. A Ministry of Labour inspector attended and determined that there was no reason for the teacher to refuse work under the Occupational Health and Safety Act. The teacher’s union appealed that decision to the OLRB.
The OLRB decided that the teacher’s first work refusal was not justified under the OHSA because at the time, the student’s health and safety was in imminent jeopardy in that the student was a danger to himself if left alone. Regulation 857 prohibited teachers from refusing to work where the circumstances were such that the life, health or safety of a student was in imminent jeopardy. However, the second work refusal was justified as the teacher had a genuine and honest concern about her safety as a result of the student’s violent behaviour. Given the student’s history, that concern was reasonable. The school had put the teacher in a difficult position: not only was the student returned to class, but no one in administration spoke with the teacher in advance. No new measures had been considered in order to deal with the student’s outbursts.
Adrian Miedema is a partner in the Toronto Employment Group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts. For more information, visit www.dentons.com or www.occupationalhealthandsafetylaw.com.