Sherryl Saunders is an industrial officer for IEUA-QNT and Lisa James is an organiser for the IEUA NSW/ACT Branch. They answer your industrial and legal questions as they relate to state laws and regulations.
Your questions answered
I am a teacher/director at a kindergarten. This year, the kindergarten has enrolled a child who displays extremely challenging behaviour on an almost daily basis. He has frequent ‘meltdowns’ and often becomes violent towards other children and staff. I am afraid he is going to hurt himself and/or others, and I am also feeling more and more stressed by having to manage his behaviour. I have spoken with his parents, but nothing has changed. What can I do? Can I refuse to have him in my group?
I appreciate this must be a difficult situation for you. Your employer is entitled to provide you with lawful and reasonable directions. A direction to teach a particular group of children would, in most circumstances, be regarded as ‘lawful and reasonable’, so you would not be able to refuse to teach the child.
That being said, your employer has a duty of care towards you, other staff and the children who attend the kindergarten, so they must take reasonable steps to ensure the health and safety of the staff and the children. If you have not already done so, you need to make the employer aware of the risks imposed by the child’s challenging behaviours (including the risks to your mental health). The employer must then put in place reasonable measures to address those risks. Such measures might include providing additional staffing to assist with the child and/or designing an individual program for him. If the child has a diagnosed medical condition, the kindergarten may be eligible for extra funding for resources to support him.
You should also ensure that you safeguard your own health and consult your treating medical practitioner for advice, if necessary.
If you have any difficulties in obtaining the necessary support, please contact our Union for assistance.
I’m on leave without pay as I have decided that working under my current director is not a safe or wise decision, and I’m entitled to a safe working environment.I am meeting with management to discuss this.My question is, I said I would take leave without pay as I thought this was the only option, however somebody I was talking to said that I’m entitled to get paid given the circumstances. Is this correct, and if so how do I request payment?
If you are suffering from a stress related medical condition such as high blood pressure, insomnia, anxiety or other condition, you can access paid personal leave by obtaining a medical certificate for your absence from work from your doctor.
Alternatively, if you have a work related medical condition as a result of the alleged bullying by your director, you may make a workers compensation claim. You will need to advise your employer that you are claiming workers compensation and provide supporting documents from your doctor stating that you are suffering from work related injury which precludes you from attending work. You need to be aware that workers compensation claims for mental or stress related injuries are difficult to prove.
In addition, I encourage you to make a formal written complaint to management detailing the bullying behaviours to which you were subjected by your director and request they investigate these allegations.