A recent decision by the Ontario Labour Relations Board (OLRB) ruled in favour of a Toronto kindergarten teacher’s refusal to work in Jan. 2015, because of a student with a history of violent behaviour.

OLRB alternate chair Brian McLean stated that the second of the teacher’s two work refusals was justified, but dismissed the teacher’s appeal regarding the first refusal, according to McLean’s written decision, dated June 12 of this year.

“I am satisfied, based on the evidence, that the teacher had a genuine and honest concern about her safety,” wrote McLean. “The student had injured the teacher in a way that required her to go to the hospital. He had also injured other faculty and students. Regardless of his age and size, the student was a safety risk.”

The teacher, who was not named in the document, had already learned about the child’s tendency towards violence during the 2013-14 school year, before the student was enrolled in her senior kindergarten class, McLean wrote. In July 2014, after the teacher expressed her concerns about the student to the school principal, it was arranged that the student would be accompanied by a full-time education assistant (EA) in class.

But the student continued to behave violently towards other students and staff, including one incident in which he scratched the teacher’s face, including her eye, sending her to the hospital, according to the OLRB decision.

On Jan. 16, 2015, the EA was not present at the start of the class, and the student began acting out, first by striking another student. Later, after the EA’s arrival, the teacher took the rest of the students out of the classroom prematurely for music class in the library. “The teacher looked through the window in the door and saw the student kicking and hitting the EA,” wrote McLean. “The student threw things at the window and kicked and swore.”

The teacher advised the principal that she was exercising her right to refuse unsafe work. The principal and superintendent then decided to remove the student from her class for the day. But the teacher assumed that he was out of the class permanently and was surprised to see the student back in the classroom on the following Monday morning, Jan. 19.

“The teacher [told the principal] that she did not feel safe, since she was concerned about a violent outburst,” said McLean. “She felt unsafe because the student was unpredictable.”

In his decision, McLean stated that the Jan. 16 refusal was not justified because the province’s Occupational Health and Safety Act does not permit a teacher’s work refusal when the life, health or safety of a student is at risk. “It would have been easy for the student to hurt himself, given the way he was acting, in any number of ways, such as slipping and hitting his head on a desk or on the floor,” he wrote.

But McLean approved of the second work refusal on Jan. 19, as the teacher “had a genuine and reasonable fear that the student would engage in violence… and the employer had done nothing new to assist in dealing with the situation.”

He added that “it is unclear what more the employer could have done to protect the teacher” in the situation.