Teacher refuses work twice because of violent student

A Toronto kindergarten teacher did not have the right to refuse work during a student’s violent outburst in the classroom but did when she found the student returned to her class the next school day, the Ontario Labour Relations Board has ruled.

The teacher became employed with the Toronto Catholic District School Board (TCDSB) in 2003. In the 2013-2014 school year, she became aware of a troublesome four-year-old student in the junior kindergarten classroom adjacent to her full-day junior and senior kindergarten class. The student had problems with acting out and the teacher witnessed him fighting in the schoolyard, punching and kicking an administrative assistant, and being restrained by his teacher. In June 2014, the student poked another student in the eye with a stick.

In July 2014, the teacher learned this student would be in her senior kindergarten class the following school year starting that September. The teacher told the principal she was concerned about him, and the principal advised that the student would have full-time support from an educational assistant (EA) while in class in addition to an early childhood educator (ECE) that all kindergarten classes had. The plan was for at least one of them would be in the class at all times.

The school also developed an individualized education plan for the student. Such plans were established when students were identified as having issues that hindered their learning and classroom participation.

Less than two weeks into the 2014-2015 school year, the teacher reported to the principal that she had already had several incidents with the student, including hitting other students and running out of the classroom and school. Things were also exacerbated by the fact the regular EA who the student knew and was comfortable with was on leave and had been replaced by a substitute.

Over the next month, the student picked up a stool and threw it at the teacher and also tried to bite and scratch her. The teacher couldn’t identify anything that triggered the violent outbursts, so she couldn’t predict when they would happen. The school developed a safety plan in which the classroom would be evacuated if the student became violent, with the EA staying with the student and the teacher taking the rest of the class. They also came up with strategies for when the student became anxious and agitated.

As the school year progressed, the student’s behaviour escalated. There was an incident in which the student kicked the teacher and scratched her eye, causing the teacher to go to the hospital, where she was warned she came close to having her vision damaged. The student also pushed and kicked the teacher, the special education teacher, and other students several times. On a class field trip, the student fought the EA and took out a chunk of the EA’s hair with his teeth.

The teacher kept a computer log of the incidents that she intended to include in the TCDSB’s safe schools program, though the TCDSB didn’t respond to them. She also filled out health and safety reports and a made a workers’ compensation claim for the scratch on her eye. Over time, the teacher grew concerned that the school’s administration and the TCDSB weren’t taking her reports seriously.

Teacher had enough of violent behaviour

On Jan. 16, 2015, the student’s regular EA wasn’t present when class started, though the class ECE was there. The student hit another student and was brought to the principal. The principal asked the student if there was anything he wanted to say to the classmate he hit, and the student said nothing. However, the principal brought the student back to class anyway, despite the teacher’s misgivings.

After the principal left, the student refused to participate in classroom activities and walked around, bumping into other students’ chairs. The EA took the student to the library but brought him back shortly thereafter. While the students were all sitting on the carpet, the student began to push back at the child sitting behind him. The teacher anticipated an outburst, so she asked the ECE to take the children out of the classroom.

After she closed the classroom door, the teacher observed through the window that the student was hitting and kicking the EA. He also threw things at the window and was swearing, though the EA reported she didn’t feel unsafe because the student was small and she was used to dealing with him.

The vice-principal arrived and had to hold the door closed, as the student was trying to open the door to get out. The EA confirmed she was still okay, but the teacher didn’t feel it was safe to go into the classroom. The student began throwing toys at the door, but eventually the EA was able to calm him down.

The teacher went to the principals’ office and said she was exercising her right to refuse unsafe work as she had no way of knowing when the student would go off, though she had sensed it about to happen on the carpet. The superintendent was contacted and the teacher said she would feel safe if the student was removed from the class, so the student was removed and stayed in the principal’s office for the rest of the day.

The teacher arrived at the school on the next school day, Jan. 19, to find the regular EA back at work. However, she was surprised to see the student back in her class. She called the principal and said that even though the regular EA was back, she still didn’t feel safe because she was concerned about an unpredictable violent outburst. Though the student hadn’t done anything violent that day, the teacher refused to work and remained in the staff room for the whole day. An Ontario Ministry of Labour health and safety inspector arrived and determined there was no reason for the teacher to refuse work under the province’s Occupational Health and Safety Act (OHSA). The teacher’s union filed an appeal of the inspector’s decision.

The labour relations board noted that a regulation under the OHSA limited teachers’ right to refuse unsafe work because of their duty of care to protect students, and “being a teacher may mean that you put your own life, health or safety in danger in order to protect your students.” In addition, the OHSA regulation didn’t permit teachers to transfer care of a student to allow the teacher to refuse work.

The board found that at the time of the teacher’s first work refusal, the troublesome student’s health and safety was in jeopardy because of his out-of-control violent actions and emotions. Even though the EA was with him to try to prevent him from hurting himself, the teacher couldn’t refuse work and pass the responsibility to the EA, said the board.

As for the second work refusal at the beginning of the next school day, the board found that the teacher had “a genuine and honest concern about her safety as a result of the student’s violent behaviour” and this concern was reasonable based on the student’s previous behaviour and the fact he had already injured the teacher before. The board also noted there is no requirement for there to be “imminent danger” to refuse work, just a genuine and reasonable belief that the work is “likely to endanger.” Even though the EA wasn’t afraid of the student, the EA had a different relationship with him than the teacher and had not been injured by him, the board said.

The board noted that the school and the TCDSB put measures in place to address the issues with the student, but these didn’t ensure the safety of teachers and other students. In addition, the teacher was put in a difficult position has she had believed the student had been removed from her class permanently but he was back in her class the next school day without anyone speaking with her about it.

The board determined that the teacher’s first work refusal was inappropriate but the second one was legitimate. However, since the teachers’ union made no suggestion of any meaningful changes to the TCDSB’s safety plan, it found no particular remedy was needed other than better communication with the teacher and a declaration that the TCDSB violated the work refusal provision of the OHSA with the teacher’s second work refusal.

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