When can a staff member make physical contact with a student, including redirecting and restraining a student?
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  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:
- When the student entered the classroom he said 'Buddy Class' and the teacher asked the student to sit in the corner on a chair facing the wall and not to interact with other students.
- Despite the teacher's direction, the student attempted to interact with other members of the class and as a result the teacher engaged in low level techniques to get the student to stop his disruptive behaviour.
- The student's behaviour did not stop, so the teacher asked the student to leave the classroom and go to the front office. The student then angrily stormed out of the classroom, flinging the door open and shouting, 'I hate this school'. The teacher informed the office that the student was coming to the officer via telephone then resumed teaching.
- About 20 minutes later the door to the teachers' classroom was thrown open in a forceful manner by the student who returned to the classroom in a deliberate and forceful manner. The student strode towards the teacher and his students who were gathered in groups on the floor.
- The teacher raised his voice at the student and said 'Excuse me. You do not enter this room without using manners. What are you doing here/why are you here?' but received no response.
- The teacher then moved into the student's path, while continuing to call out to the student. The student tried to push past the teacher with his shoulder. The teacher then grabbed the student by the collar but the student moved away from him and this resulted in a twisting motion occurring as the student fell to the floor.
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.
Learnings for schools and other educational institutions
School and other educational institutions should keep in mind that best practice recommends that restraints should be used only:
- in a manner that is safe and proportionate to the risk posed by the student's behaviours
- if it is the least restrictive option available, or as a last resort
- with the minimum necessary use of force for the shortest necessary period of time.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.