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Uncertainty surrounding physical contact with students has resulted in what can be described as a ‘hands off’ culture in many schools, with teachers and other staff afraid to make any physical contact with students.
While there is little recent case law in Queensland considering student contact and restraint, the decision of Buttery v State of Western Australia [2018] WAIR 00820, of the Western Australian Industrial Relations Commission from late 2018 provides some comfort for schools, including insight into when restraint and other use of force may be reasonable.
On the day of the altercation, a year 5 student, who was known by the year 2 teacher, was sent to the year 2 teacher’s classroom.
The actual altercation between the student and the teacher proceeded as follows:
The Commissioner considered that the disciplinary investigation that took place in relation to the incident was flawed. The investigator had chosen to rely on evidence from persons who were exaggerating and overly emotive when making a decision in relation to the events of the day.
The Commissioner found that the decision to terminate the teacher’s employment was made on the basis of this flawed evidence.
The Commission rejected the school’s argument that the teacher had grabbed the student by the shirt collar under the student’s chin while the student was in a standing position with such force as to push the student up onto his tiptoes.
The Commissioner found that a crucial issue, that had been missed in the investigation report, was the fact that the student had ignored all of the teacher’s reasonable instructions and had continued on into the classroom, attempting to push past the teacher.
The Commissioner accepted that the teacher had a genuine concern for the welfare of his students and went on to observe that:
Given his duty of care to his [Mr Buttery’s] own young students, Mr Buttery rightly had cause for concern as to what may transpire with S coming towards him. Whilst I accept that physical contact with a student is a last resort, in the circumstances in which the Incident occurred, I accept that Mr Buttery’s reaction was instinctive and was directed to stopping S from potentially colliding with students seated on the floor. To this extent… the contact made by Mr Buttery was, in the circumstances, reasonable to manage S, to prevent possible risk of injury to those younger students on the floor and to re-establish order. I do not accept to any extent, that a far lesser type of intervention, as was suggested on the evidence, of a gentle grasping around S’s wrists, could have had any possibility of restraining S’s conduct.
The Commissioner also noted that at the time of the incident, the teacher had only received the minimal level of training available to teachers in dealing with disruptive student behaviour.
Ultimately, the Commissioner found that the teacher’s dismissal had been unfair and ordered his reinstatement.
School and other educational institutions should keep in mind that best practice recommends that restraints should be used only:
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