Legal: Lessons in safety: navigating occupational violence
Queensland Teachers' Journal, Vol 128 No 3, 5 May 2023, page no. 27
Teachers and school leaders know that their job is becoming more dangerous. They see students carrying knives, aggressive parents, online threats – the trend is impossible to ignore.
What are my rights and responsibilities?
Like all Australian employees, teachers and school leaders have a right to a safe and healthy workplace. This is protected by the Work Health and Safety Act 2011 (Qld) (WHS Act), under which the employer (or PCBU) has a legal obligation to ensure that the workplace is free from hazards and risks, including workplace violence.
That means employees at schools have a legal right to expect prompt and appropriate support and systems to counteract any risks of violence in their workplace. If you have a reasonable concern that you are exposed to a serious risk to your health or safety due to an immediate or imminent exposure to a hazard, you have an obligation to make a complaint about the risk.
In the state school system, it has become increasingly important for teachers and school leaders to record these “notifiable incidents” (especially “near misses”) through their school’s work health and safety management systems. This creates a record of concerns and any actions taken to address them.
By using the school’s WHS management system to report notifiable incidents you are helping to reduce the risk of injury to yourself or others. That’s why reporting near-misses is especially important, as it can help to identify potential hazards and prevent future accidents.
What should you do if you’re injured by a student?
You should immediately report the incident to your principal or supervisor and consider making a WorkCover claim. Our advice is to maintain a detailed record of the incident, including the date and time of the assault, the type of assault, any injuries sustained, and the names of any witnesses.
You should also seek medical advice. Even if you don’t think you’ve been injured, it’s important to get checked as injuries may not be immediately apparent. Be sure to tell your doctor that the injury occurred on the job.
Your doctor can lodge the WorkCover claim for you. You can lodge the WorkCover claim for “notification” purposes only, if you don’t need any time off work.
There are strict time limits on all forms of claim, so you should act quickly.
What you need to know about WorkCover
There are two kinds of compensation an injured teacher or school leader may be eligible to claim under WorkCover: statutory benefits and common law.
You have the same entitlement to statutory compensation for lost wages, medical bills and rehabilitation costs as any other employee who suffers an injury while at work. If you need to make a claim with WorkCover, you can apply for support from the date your doctor first assessed your injury and provided a work capacity certificate.
You can claim compensation for physical injuries or psychological injuries. Compensation also covers the gradual onset or aggravation of an injury.
For a successful WorkCover claim, employment must be a “significant contributing factor” to the injury, regardless of its type or severity. These entitlements are granted on a no-fault basis, meaning that the cause does not matter if it happened at or because of work.
While WorkCover acknowledges that workers can develop psychological injuries from work-related stressors or incidents over time, claims for physical injuries are typically more easily accepted. For a psychological injury to be accepted, it must not result from reasonable management action or from a worker’s expectation or perception of it.
Reasonable management action can include transfer, discipline, demotion, or dismissal. It can also include withholding promotions or other benefits. Conversely, bullying and harassment, a lack of procedural fairness, an excessive workload, or a failure to provide relevant training would be seen as unreasonable management action.
An assault by a student is always an acceptable reason to lodge a WorkCover claim. When speaking to your doctor, make sure you are clear that it was the student assault which has caused your injury. Avoid being led into discussion about how the school addressed the violence. If you are injured by an assault, that is the only information that should be provided to WorkCover.
Once WorkCover considers that it can no longer reasonably provide any support and that the injury is stable, it will assess the level of impairment and may offer a lump sum in compensation. This triggers a potential entitlement to an alternative form of compensation, which is a common law claim for damages agains the employer. To be eligible for this, the staff member must prove the school’s negligence or fault.
Where a student assaults a teacher, this would require investigating whether the school was aware or should have been aware of the student’s history of repeated violent behaviour and if they previously took action to address it.