A recent decision of the New South Wales Industrial Relations Commission in Colefax v Secretary, Department of Education  NSWIRComm 1033, provides fascinating insight for schools about the Commission’s view concerning the inherent requirements of the role of teacher and when adjustments are no longer reasonable.
Ms Colefax was a primary school ESL teacher who suffered from incomplete paraplegia, symptoms of which included weakness and balance and sensory issues. Her symptoms were made worse by over exertion, undue anxiety and fatigue. In March 2017, the Director of Public Schools NSW made the decision to medically retire the teacher. The teacher brought proceedings against the Department, alleging that she had been unfairly dismissed and that the Department had failed to make reasonable adjustments for her disability.
The Department relied on its work health and safety obligations, arguing that the teacher’s symptoms rendered her unable to safely perform her duties as a teacher.
Inherent requirements of a teacher
Commissioner Murphy accepted that the school had ‘quite reasonably formed the view that there may be unacceptable risks to the health and safety of the applicant, the children who are pupils at the schools at which she might teach and to other staff member with whom she might teach’.
Commissioner Murphy found that the teacher had significant restrictions on her ability to teach. An assessment of the teacher’s ongoing ability to safely perform the inherent requirements of her role by an occupational therapist concluded that:
- the teacher’s pain increased when she was tired, which in turn impeded her ability to perform her teaching role
- the pain management techniques the teacher proposed to use would also impact on her ability to perform her role (for example, if the teacher used visualisation strategies to manage her pain, she would not be able to focus on the behavioural management of students)
- given the unpredictability of students, the ability to cope with stressful situations was part of a teacher’s role and, because this stress would re-aggravate the teacher’s condition, there was no way to safely return the teacher to work
- there was an extremely high risk of the teacher falling while at school, which was unlikely to be managed or mitigated.
The teacher proposed 19 adjustments that could be made to her role. Commissioner Murphy found that none of the teacher’s proposed adjustments were reasonably practicable, including that:
- the timetable could not be adjusted to provide for appropriate rest breaks for the teacher because it would require altering a major part of the school’s timetable given the teacher’s role, which required her to be present during classes held all over the school and in all grades
- the school was not able to fill potholes, manage school bags, properly drain water (which created slip hazards) or manage student behaviour to avoid trip hazards for the teacher because the cost would be high and there was no strategy that would manage student behaviour to prevent jostling or leaving bags or raincoats etc. around
- having the teacher stand adjacent to a fixed object (such as a handrail, flagpole, tree or seat) when she was undertaking playground duties and minimising walking when assigning her to playground duties was not viable because it would mean the teacher would not be effectively supervising the students nor would she be able to intervene in disputes or help with injured students
- the teacher’s proposal to conduct a workplace stress analysis of the school and then use the findings of that analysis to instruct the whole school community (presumably including children, parents, teachers and other members of the community who visit the school) to control and manage stressors was not feasible
- providing the teacher with a buddy to assist her in an emergency would address the teacher’s needs but did not address her duties to the students.
What does this mean for schools?
This case demonstrates the importance of getting adequate medical evidence before deciding to terminate employment by reason of illness or injury.
It should be noted that this case was not argued under discrimination legislation and so did not consider the concept of reasonable adjustments in detail. However, it provides interesting insight into what a court or commission will consider.
Legal advice should always be sought when deciding to dismiss a staff member in circumstances where they may not able to safely perform the inherent requirements of their position.
If you would like to discuss the management of your employees’ illnesses or injuries, please contact Annie Smeaton, Partner, on (07) 3231 2946 or Samantha Ramsay, Lawyer, on (07) 3231 2933 from our workplace relations team.