Emil Ford Lawyers

Education Law Articles - Teacher Liability

 

Have a question re teacher liability? 
Contact +61 2 9267 9800

 “MySpace” led to “HerTroubles”?

The Washington Post reported that a young student teacher was weeks away from getting her teaching degree when her university refused to give her a teaching degree because of personal photos she had posted on a MySpace page. A photograph of the student appeared on the MySpace page labelled "drunken pirate." She said school officials accused her of promoting underage drinking after seeing the photo, which showed her wearing a pirate hat and drinking out of a yellow cup. The university disagreed, claiming the refusal to give her the degree was due to unsatisfactory performance and unprofessional behaviour.

Teachers in the USA have reportedly been suspended or fired for their online profiles on MySpace or Facebook, leading some schools to begin formulating policies to regulate the virtual lives of their employees.

The behaviour of your teaching staff is scrutinised on line as well as in the classroom. They must be made aware of their responsibility to the students in regards to their on-line behaviour. Their influence over the students extends well beyond the classroom.
 


Incompetent ...
or just a bad judgment?

Sometimes, it is not what a teacher does that makes him or her open to claims of incompetence, it is what they do not do.

It was Mr Moran’s reaction (or lack of action) to a fight between students that led to his suspension. Mr Moran did not do enough to break up the fight which resulted in one student being injured and then he did not assist the injured student following the incident.

Mr Moran was present during the fight and asked students to “stop” or “move away” or “break it up” and waved his arms to disperse the students. However, Mr Moran did not intervene to:

  1. prevent the altercation;
  2. stop or break up the altercation;
  3. assist the injured female student.

So was Mr Moran incompetent or did he simply make a bad judgment call? A simple error of judgment, or a simple negligent act, is not sufficient to constitute serious incompetence.

In regards to physically intervening in the fight, the Victorian Civil and Administrative Tribunal admitted that there appeared to be no general guidelines available to teachers as to the circumstances in which a teacher should physically intervene. Teachers have a responsibility to protect students. However, they are not expected to place themselves physically in harm’s way or take the risk of harming another child. In regards to the lack of intervention, it was concluded that Mr Moran should have gone in closer to where the fight took place. To stand back in the position he did during the fight was a serious error of judgment.

Mr Moran’s failure to assist the injured student following the fight was a different story. The Tribunal found him to be seriously incompetent in this regard. Indeed, they believe that had he shown appropriate concern and leadership after the incident it is doubtful that the incident would have assumed the proportions it did in the mind of the school community.

The Tribunal believes that the teaching profession needs to develop guidelines as to the issue of physical violence and educate teachers as to appropriate strategies. As this incident was only a few minutes of Mr Moran’s whole career, and having heard a great deal of character evidence on his behalf, the Tribunal decided that a period of suspension was sufficient penalty for his failure to assist the student.
 


Is your school liable for the criminal acts of its teachers?

The Australian High Court faced up to this question in three cases against school authorities involving claims for damages arising from sexual abuse perpetrated by a teacher employed by the school authority. The assaults occurred on school premises during school hours. Two were in Queensland and one in NSW.

The High Court considered two legal questions: the nature of a school's non-delegable duty of care and the scope of a school's vicarious liability.

The Court determined that the “non-delegable duty of care” doctrine did not make a school liable for every injury that occurs at school, whether accidental or intentionally inflicted by a teacher upon a pupil. This would be too demanding a responsibility for a school. Rather, a school must just do what is reasonable to avoid foreseeable risk of injury.

In the NSW case, the pupil argued that the school authority was vicariously liable for the intentional criminal conduct of the teacher. Such liability depends upon the scope of the teacher’s employment. Two of the judges stated that “the deliberate sexual assault on a pupil is not some unintended by-product of performance of the teacher’s task, no matter whether that task requires some intimate contact with the child or not”.

However, Chief Justice Gleeson said:

there are some circumstances in which teachers.... have responsibilities of a kind that involve an undertaking of personal protection, and a relationship of such power and intimacy, that sexual abuse may properly be regarded as sufficiently connected with their duties to give rise to vicarious liability in their employers.

The appeal in this NSW case has been sent back to the trial judge for further findings of fact to determine whether the conduct did or did not occur in the course of employment. If spanking a young boy in a storeroom with a ruler on his bare buttocks can be characterised as excessive or inappropriate “chastisement”, then it may be considered to have occurred in the course of employment and the school authority could be vicariously liable.
 


On-line misbehaviour

In the USA:

A teacher in Pennsylvania has been suspended over blog postings she made which were critical of her students.

When a parent read the teacher’s blog postings and saw comments such as “frightfully dim”, “Rat-like”, “Am concerned your kid is going to open fire on the school”, “I hate your kid”, and “Seems smarter than she actually is” on her blog, she called school officials to complain.

And in Australia:

Negative comments made on Facebook about her employer have, in part, led to the dismissal of a hairdresser in Victoria.

The Fair Work Australia Commissioner said that “Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common. What might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people. Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.”

Luckily, for this employee, she did not name the salon where she worked and the Commissioner did not consider that the comments were such that they would adversely affect the employer’s salon specifically.

But a warning for all employee’s no matter what their industry. The Commissioner also said
A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see. It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.


“MySpace” led to “HerTroubles”?

The Washington Post reported that a young student teacher was weeks away from getting her teaching degree when her university refused to give her a teaching degree because of personal photos she had posted on a MySpace page. A photograph of the student appeared on the MySpace page labelled "drunken pirate." She said school officials accused her of promoting underage drinking after seeing the photo, which showed her wearing a pirate hat and drinking out of a yellow cup. The university disagreed, claiming the refusal to give her the degree was due to unsatisfactory performance and unprofessional behaviour.

Teachers in the USA have reportedly been suspended or fired for their online profiles on MySpace or Facebook, leading some schools to begin formulating policies to regulate the virtual lives of their employees.

The behaviour of your teaching staff is scrutinised on line as well as in the classroom. They must be made aware of their responsibility to the students in regards to their on-line behaviour. Their influence over the students extends well beyond the classroom.
 


Incompetent ...
or just a bad judgment?

Sometimes, it is not what a teacher does that makes him or her open to claims of incompetence, it is what they do not do.

It was Mr Moran’s reaction (or lack of action) to a fight between students that led to his suspension. Mr Moran did not do enough to break up the fight which resulted in one student being injured and then he did not assist the injured student following the incident.

Mr Moran was present during the fight and asked students to “stop” or “move away” or “break it up” and waved his arms to disperse the students. However, Mr Moran did not intervene to:

i) prevent the altercation;
ii) stop or break up the altercation;
iii) assist the injured female student.

So was Mr Moran incompetent or did he simply make a bad judgment call? A simple error of judgment, or a simple negligent act, is not sufficient to constitute serious incompetence.

In regards to physically intervening in the fight, the Victorian Civil and Administrative Tribunal admitted that there appeared to be no general guidelines available to teachers as to the circumstances in which a teacher should physically intervene. Teachers have a responsibility to protect students. However, they are not expected to place themselves physically in harm’s way or take the risk of harming another child. In regards to the lack of intervention, it was concluded that Mr Moran should have gone in closer to where the fight took place. To stand back in the position he did during the fight was a serious error of judgment.

Mr Moran’s failure to assist the injured student following the fight was a different story. The Tribunal found him to be seriously incompetent in this regard. Indeed, they believe that had he shown appropriate concern and leadership after the incident it is doubtful that the incident would have assumed the proportions it did in the mind of the school community.

The Tribunal believes that the teaching profession needs to develop guidelines as to the issue of physical violence and educate teachers as to appropriate strategies. As this incident was only a few minutes of Mr Moran’s whole career, and having heard a great deal of character evidence on his behalf, the Tribunal decided that a period of suspension was sufficient penalty for his failure to assist the student. 
 

Have a question re teacher liability?
Ask +61 2 9267 9800

 

Suite 4 Level 5
580 George Street
Sydney NSW 2000
Phone: +61 2 9267 9800
Fax: +61 2 9283 2553