Legal: When "punching bags" fight back

It’s a tabloid staple as reliable as death and taxes. For newspaper editors, violent students physically attacking teachers are the gift that keeps on giving.

Such assaults are not a new phenomenon, and the Criminal Code (Protecting School Students and Members of Staff from Assaults) Amendment Bill 2007 introduced a range of criminal charges and heavier sentences. Despite this, in a world in which student protection (and the teacher’s responsibility for it) increases year on year, protection for teachers themselves seems ever more inadequate.

During the 2016 estimates hearings in the Queensland Parliament, the government was questioned about the 1,500 students who had been suspended or expelled for assaulting state school teachers during the previous 15 months, including 174 incidents that led to WorkCover claims. In February this year, The Courier-Mail reported on similar figures with details obtained through Right to Information laws which included a teacher being strangled in Far North Queensland, another hit in the face by an iron bar in South East Queensland and a fire extinguisher sprayed in an educator’s face in Brisbane.

On each occasion, the government responded by referring to its “Respect our staff, respect our schools” campaign and with statements such as “our teachers are not punching bags” and “one assault on a teacher is one too many”.

While reflecting on such comments may be comforting, we suspect some teachers might want to turn their minds to more practical ways to protect themselves in the workplace.

Queensland operates a strict work health and safety regime legislated for under the Work Health & Safety Act 2011. Under the act, an employer has a “duty to ensure, so far as is reasonably practicable, the health and safety of their workers while at work in the business or undertaking”. Section 34 of the Work Health and Safety Regulation 2011 (QLD) defines a duty to identify hazards, stating “a duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety”.

This duty is actionable, and in theory prosecution can occur for failure to protect you from a student who causes you injury where it was reasonably foreseeable that they may cause you an injury. On its website, Worksafe Queensland identifies occupational violence as a major cause of injuries in education workplaces. Preventative measures it suggests include:

  • use design or engineering measures to change the physical characteristics of the workplace to reduce the risk, for example, provide secure retreat spaces for workers and students, such as for “lock downs”
  • put control measures in place to manage any specific risks associated with students with challenging behaviours, including behaviour management strategies to manage occupational violence from students
  • change the systems of work or work practices to help reduce risks, for example:
  • train workers in managing aggressive behaviour, including the recognition and diffusion of potentially volatile situations
  • ensure a sufficient number of appropriately trained workers
  • provide for emergency communication
  • provide support systems to workers who report or witness occupational violence
  • regularly and clearly tell the school community that violence in any form will not be tolerated.

In addition to this, the Department of Education and Training implemented a new procedure on 20 January which clearly sets out a teacher’s duty to report notifiable incidents under the act.

Section 35 of the act defines a notifiable incident as (a) the death of a person; or (b) a serious injury or illness of a person; or (c) a dangerous incident. While further definitions under the act do not specifically identify an assault on a teacher by a student as a notifiable incident, it would not be difficult to argue that such an assault fits into one of these criteria.
So make sure that every dangerous or threatening incident by a student is reported under the act. The guideline “Health and Safety Incident Reporting, Notification and Management” recommends that workplaces notify WHSQ by phone on 1300 362 128 and then record the incident in MyHR WHS.

Regular reporting of incidents will help support a submission that the assault by a particularly troublesome student was foreseeable under the act, and therefore the employer has not fulfilled its duty. Prosecution can result in hefty fines and enforced undertakings to implement new workplace practices to protect workers.

Edmund Burke                                                                                                                 Holding Redlich Lawyers

Queensland Teachers' Journal, Vol 122 No 3, 14 April 2017, p29