Teachers concerned with lack of prevention in safety plan; reasonable concern over probability of injury
“Employers should take positive and not simply reactive steps to evaluate their safety plans on a regular basis, so that they’re responsive not only to concerns raised previously by workers, but also predictive of health and safety concerns that may arise in the future.”
So says Rich Appiah, an employment and labour lawyer at Appiah Law in Toronto, after the Ontario Labour Relations Board (OLRB) upheld work refusals by two teachers following a violent incident involving a special-needs student.
“The OLRB also held that an injury doesn’t need to be more probable than not, and a low probability of an injury doesn’t mean that performing the work is a risk that a worker must take,” says Appiah.
The Dufferin-Peel Catholic School Board had a Grade-9 student who had autism spectrum disorder and other disabilities. The student was enrolled in a planning for independence program (PIP) with two educational resource workers (ERWs) assigned to him.
The student was prone to unpredictable outbursts and violent behaviour, so there was a safety plan that outlined how teachers and ERWs should respond to de-escalate the situation.
Student assaulted school worker
On March 21, 2018, the student entered a classroom with two ERWs. The student became anxious and jumped out of his chair, so the primary ERW asked the teachers to clear the other students from the room.
The student attacked the primary ERW. He swung at the her head and she blocked the blow, but she fell into a cupboard and then to the ground. The student continued to punch, hit, and scratch the ERW and others came to assist.
One female teacher, NM, normally had the student for two periods that semester. She had been attacked twice previously by the student – the student bit and scratched her and caused her to miss a day of work, and another incident when he struck her on the arm without warning.
A second female teacher, AP, didn’t teach the student but her classroom was near the PIP program and the March 21 incident happened in her classroom. A third teacher, who was male and referred to as JP, supervised the student during lunch period and saw the aftermath of the incident. He had also witnessed a prior violent incident with the student. He was well-versed in special education and felt that he could normally handle the student.
The three teachers agreed that it was “only a matter of time until a similar event would happen again” and they would be at risk. They didn’t think the safety plan adequately addressed the student’s violent behaviour.
Work refusal initiated, then retracted
On the morning of March 22, JP and AP advised the school principal that they were initiating a work refusal. NM wasn’t at school because of an outside event. The principal advised JP and AP that the student would be absent that day, so they agreed to work.
JP and AP told an inspector from the Ontario Ministry of Labour that they didn’t feel safe around the student. The inspector issued a field report stating that the school board had initiated an investigation and would review and amend the safety plan as needed “in conjunction with involved staff.”
The following day, the principal provided a revised version of the safety plan, but the only changes were to procedures in the event of a crisis.
The principal told the teachers that the student would be returning to school on March 26. That morning, NM, AP, and JP all initiated work refusals and stayed in the staff room until the student went home. An ERW also initiated a work refusal related to the student.
On March 27, the ministry inspector issued a report ordering the school board to “provide information and instruction to all staff on the current measures and procedures in the violence program” but concluding that the work refusals were based on “speculation or abstract feelings of anxiety” rather than a real threat to their safety, so they weren’t valid.
Teachers felt at risk
The three teachers returned to work reluctantly, but they expressed their concerns about the safety plan not being proactive, as well as their lack of training on it. They also appealed the inspector’s decision to the OLRB.
The OLRB noted that the Ontario Education Act and its regulation doesn’t allow teachers to refuse work where “the life, health or safety of a pupil is in imminent jeopardy.” A worker must also have “reason to believe that workplace violence is likely to endanger himself/herself” on an honestly subjective basis as well as an objectively reasonable basis, said the OLRB.
The OLRB found that the principal and the school board were focused on revising the safety plan, but they didn’t actually conduct an investigation into the work refusals. The teachers also weren’t consulted on the safety plan and were presented with it once it was final, the OLRB said.
The OLRB also found that the teachers clearly told the inspector on both March 22 and March 26 that they felt unsafe working with the student. The inspector indicated in the report that the school board would be amending the safety plan in conjunction with staff, but that didn’t happen, said the OLRB.
The OLRB noted that the “notion of likely endangerment” did not necessarily mean that an injury must be more probable than not. The intention of the OHSA and related legislation was to protect workers, so any significant probability of injury should be considered, it said.
Students not in danger
Regarding the teachers’ duty of care to students, the OLRB noted that the teachers were responsible for supervising students in the PIP and they assumed that the school would take care of it when they refused to work. However, they advised the principal of their work refusals before school started. When the teachers revoked their work refusals on March 22, the principal was on notice that they would exercise their rights when the student returned, and the teachers also expressed their concerns about the safety plan when the principal presented it to them, making him aware that they intended to refuse work, the OLRB said.
The OLRB also pointed out that when the teachers refused to work on March 26, the principal didn’t order them to cease their refusal and made other arrangements. There was no indication that the students were in any jeopardy, the OLRB found.
The OLRB also found that all that is required for a work refusal is a reasonable belief that the employee will be endangered if they continue to work, and this was the case with the teachers who knew the student was unpredictably violent and the safety plan didn’t reduce the risk – they didn’t have to observe the student or wait until he was present for them to believe there would be a risk to their safety, said the OLRB.
“One of the teachers [NM] had been attacked by the student previously, she knew of other incidents, and she saw his behavior in class every day,” says Appiah. “While she didn't witness the assault on March 21, she saw the victim, who was bruised and bloodied - the labour board's concern was that she had a genuine concern of winding up in the same situation.”
“With respect to the other teacher [AP], she saw the attack and it was quite disturbing and frightening to her, so the OLRB found that she also genuinely believed in the danger to provide justification for her refusal,” he adds.
No consultation for safety plan
The fact that the teachers weren’t involved in the process of changing the safety plan and it was presented to them as a ‘fait accompli’ was a concern for the OLRB, according to Appiah.
“And the OLRB was further concerned that there was never any actual training of the teachers to prepare them for what would occur if they or someone else was physically attacked,” he says.
However, the OLRB found things were different for JP, the male teacher. He was a special education teacher who had been attacked by the student, but he didn’t show the same level of concern - he expressed his primary motivation for the work refusal as better support for the student and others who were at risk, said the OLRB. Had JP been concerned for his own safety, he likely would have declined to supervise the student at lunch previously, the OLRB said.
The OLRB upheld the appeals of NM and AP, finding they had legitimate reasons for their work refusals. It dismissed JP’s appeal.
The school board could have done more to avoid the work refusals since it was aware of the risk for violence, according to Appiah.
“The attack on March 21 was not the first instance of the student acting aggressively and violently, so it was predictable that, at some point, a teacher or teachers would refuse to continue to work with the student until the school took adequate steps to ensure their safety,” he says. “Those steps could include consulting with the teachers on a safety plan that was more proactive and better training to the teachers and support workers who were interacting with the student as to how they should respond if the student became violent.”
