Emil Ford Lawyers

Filling in potholes?

 

An ESL primary school teacher suffered from incomplete paraplegia. This caused constant and extreme pain, constant spasticity, a lack of normal feeling, weakness and balance and sensory issues, all from the waist down. Her symptoms were made worse by over exertion, undue anxiety and fatigue.

On 29 March 2017, the Executive Director of Public Schools NSW, a branch of the Department of Education, made a determination pursuant to section 76 of the Teaching Service Act 1980 that:

  1. the teacher was unable to carry out the inherent requirements of her position as an ESL teacher due to the impact of her physical incapacities, her psychiatric or mental incapacity or both;
  2. her inability to carry out the duties of her position was likely to be permanent; and
  3. her incapacity had not arisen from actual misconduct on her part or from causes within her control.

Consequently, the teacher was medically retired from the Teaching Service. She brought proceedings against the Department arguing, firstly, that she was able to work and should be reinstated and, secondly, that the Department had failed to make reasonable adjustments for her disability of incomplete paraplegia. The Department relied on its work health and safety obligations, arguing that the teacher’s symptoms rendered her unable to perform safely her duties as a teacher in a school.

An unacceptable risk

Commissioner Murphy in the NSW Industrial Relations Commission had to determine whether or not the termination of the teacher’s employment by way of medical retirement was harsh, unreasonable or unjust. In his decision handed down in May 2018, the Commissioner said:

I have a great deal of sympathy for the [teacher] who has endured significant health problems over the past ten years and who has now lost the career in which she has worked for a considerable part of her life. However, the [Department] has a duty under the provisions of the Work Health and Safety Act 2011 to eliminate risks to the health and safety of its employees and the children who attend its school, so far as reasonably practicable.

The Commissioner held that the Executive Director quite reasonably formed the view that there may be unacceptable risks to the health and safety of the teacher, to the children who are students at the schools at which she might teach and to other staff members with whom she might teach.

Reasonable adjustments

The teacher proposed 19 “adjustments or control measures” that could be put in place to assist her to return to her role. However, the Commissioner found that none of the proposals were reasonably practicable.

For example, with regard to the school premises, the teacher proposed filling potholes, managing school bags, properly draining water that creates slip hazards and managing student behaviour. The Commissioner said the cost of filling all potholes and installing a drainage system to prevent slip hazards would be high and there was no strategy that would manage student behaviour to prevent jostling and leaving bags and raincoats around.

With regard to rest breaks, the teacher proposed:

  • lying down on the first aid bed to avoid fatigue and cramps.

The Commissioner said the proposal did not say how often this would be required or what to do if a student was in the first aid bed.

  • arranging for late start or finish times or longer breaks.

The Commissioner said this could not be managed because the teacher, as an ESL teacher, would be required to be present during classes run by the classroom teachers who would have specified starting and finishing times.

  • adjusting the timetable to provide for appropriate rest breaks in order to control the risk of fatigue.

The Commissioner said this would mean altering a major part of the school’s timetable because the teacher would be required to be present during classes held all over the school and in all grades.

With regard to moving around the school grounds, the teacher proposed:

  • minimising walking by assigning her to playground duties close to the administration buildings and teaching rooms and, whilst undertaking playground duties, arranging for her to stand adjacent to a fixed object, such as a handrail, flagpole, tree or seat.

The Commissioner said this meant the teacher would not thereby be effectively supervising the students nor would she be able to intervene in disputes or help injured children.

  • minimising use of stairs.

The Commissioner said this could not be done when, as an ESL teacher, she would be required to be present during classes which are held all over the school campus.

  • if required to use stairs, only doing so once students had finished using them.

The Commissioner said this could not be enforced or monitored by the school and, in any event, would mean that the teacher would be late to every class.

  • alternatively, if required to use stairs with others, to implement an awareness program across all teachers, staff and students as to her disability and the need to provide her with adequate space on the left-hand side of stairwells.

The Commissioner said this could not be enforced, nor would it control children who may not know their left from their right!

The teacher also proposed educating the school community to control and manage stressors around her, directing other staff to take on her duties (for example, carrying her resource material to classrooms) and providing an identified staff “buddy” to support her during her return to work and to assist her (for example, during emergency evacuation procedures). The Commissioner found that these proposals were also unreasonable.

What does this mean for schools?

This case was not argued using the Disability Discrimination Act and its concept of reasonableness. Rather, the teacher’s case was argued under State legislation that only applies to public, not independent, schools. It does, however, offer some insight into what are reasonable adjustments or control measures in a school. Like public schools, independent schools must also make reasonable adjustments to cater for those with disabilities, whilst at the same time upholding their work health and safety obligations. This case suggests that if a teacher is not able to perform the inherent requirements of his or her role at school, to allow that teacher to continue in that role or return to work would be inconsistent with the school’s work health and safety obligations.

If you would like to learn more about “reasonable adjustments” and what this means for schools, please contact or

 

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