Dismissal for teacher who taped children to seats

“In the law, context is everything”. This is a proposition regularly stated by judicial officers and even more commonly applied by them. It reflects, of course, common sense and daily experience.

A recent decision of the Fair Work Commission, in a case arising in another state, illustrates the care which teachers must exercise and demonstrates that, in relevant circumstances, the using of masking tape to secure children to their seats can justify serious disciplinary action, including termination.

The teacher “did not dispute using masking tape to secure three children to their seats. She explained that the masking tape was placed across the children’s lap and down each side to the base of the chair. … she regarded this as being done ‘in a playful way’ and that she described the tape as ‘a seatbelt’.”

The (non-government) school in question had extensive and specific child protection policies in place which dealt with the question of physical contact (though not explicitly with the question of taping children to their chairs).

A senior teacher at the school gave evidence that he understood that the primary school teachers had been advised that any problems with particular children should be referred to him, and that the teacher in question had not referred any particular concerns to him. His recollection was that only one of the three children needed to be taken out of the classroom by him.

The Commissioner held that he was “not satisfied that in these respects (the teacher) followed the procedures for addressing such situations and the policy of dealing with inappropriate behaviour.”

The Commissioner concluded that the allegations were substantiated, adding: “I accept that the masking tape may not have touched the children’s skin and that it may have been physically possible for the children to break out of this tape. Nevertheless, (the teacher) clearly intended that the children should regard themselves as ‘secured’. (The teacher’s) behaviour in these respects was inconsistent with the expectations of her as a teacher in terms of the guidelines and specified standards.

“On the basis of the advice provided by (the teacher) I can only describe her actions in these respects as deliberate. These were not instances where the children were secured by masking tape accidentally. (The teacher) made deliberate decisions to use the masking tape. She characterised it as being like ‘a seatbelt’ and she repeated her use of the masking tape after the first occasion.

“Contrary to her submissions in this respect, I am unable to regard (the teacher’s) behaviour as ‘a storm in a tea cup’. This behaviour clearly breached a significant policy requirement and created the real potential for harm to children entrusted to (the teacher’s) care. An attempt to characterise the matter as trivial appears to reflect a significant failure to appreciate a vital school policy requirement.”

Later the Commissioner noted: “It was behaviour that even (the teacher) recognised may have scared at least one of the children.”

The cumulative effect of all of these matters, particularly the young age of the students, the repeated behaviour, the failure to follow school directives, the failure to take advantage of processes for seeking assistance with difficult children, and knowledge that at least one of the children was scared, were held to justify termination.

Although in other circumstances termination might well have been an excessive and inappropriate response, it is, of course, always inadvisable for methods such as this to be used, particularly without consultation or approval and in contravention of school policies and procedures.

It is an important reminder of the need for “restraint in using restraint”.

"Bad behaviour" decision upheld on appeal

In the Journal dated 24 April (pg 25) we discussed a decision of the Fair Work Commission in relation to termination resulting from inappropriate sexual harassment by a Qantas pilot. On 28 April 2015, a Full Bench of the Fair Work Commission held that there was no ground for granting leave to appeal, and so the decision stands.

Andrew Knott
TressCox Lawyers

Queensland Teachers' Journal, Vol 120 No 4, 5 June 2015, p29