A New Zealand teacher has been suspended for two years after being caught smelling of alcohol at school. Although the incident occurred across the Tasman, the lessons from this case are definitely a helpful reminder for Australian schools and teachers.
Mr C and the Teacher Disciplinary Tribunal
Mr C was suspended for misconduct after a student noticed he smelled of alcohol. The school’s principal suspended Mr C the same day the student came to her with concerns about smelling alcohol on Mr C. It is unclear if the school had evidence to prove that alcohol was actually consumed or not.
Mr C told the Teacher Disciplinary Tribunal (the Tribunal) that he was an alcoholic and drank heavily outside teaching hours and did not see it as a health issue that would affect his students or ability to teach. However, at the hearing the Tribunal decided that Mr C’s use of alcohol amounted "to serious misconduct as it was likely to adversely affect the learning of students, and reflect poorly on his fitness to teach." Mr C was suspended for two years and had the following two conditions imposed, in the event he decides to return to teaching after his suspension, Mr C must:
- inform future employers of the disciplinary proceeding and provide them with a copy of the decision; and
- submit to any breath and blood testing required by his employers.
What's the law?
Mr C breached section 378 of the Education Act 1989 (NZ) which states that serious misconduct means conduct by a teacher that:
- adversely affects the wellbeing or learning of one or more students;
- reflects adversely on the teacher’s fitness to teach; or
- bring the teaching profession into disrepute; and
is of a character or severity that meets the Education Council’s criteria for reporting serious misconduct. Similar requirements exist in the Australian State and Territory teacher registration legislation, regulations and standards.
The Tribunal decided that members of the public could reasonably conclude that the reputation and good standing of the teaching profession is lowered by Mr C’s conduct. The Tribunal stated that “a teacher who attends school under the influence of alcohol or consumes alcohol during the teaching day, for whatever reason, brings harm to the reputation of the teaching profession.”
A witness told the Tribunal that he saw the teacher drinking between classes and in the back of the car during lunch breaks. Mr C had two previous convictions for drink driving in 2011 and 2013. In light of all the evidence, the Tribunal decided that it was prudent to suspend Mr C for two years. Mr C will attend Alcoholics Anonymous and seek other medical help.
Mr C and the school he taught at sought orders for non-publication of the decision, but both applications were declined.
Concerns for schools
Clearly having a teacher under the influence of alcohol or drugs is likely to affect their judgement and teaching ability, as well as presenting a potential safety hazard to themselves and students. Furthermore, there is a high risk of reputational damage to the school.
So what measures should a school consider?
Safety
Finding a teacher who appears to be under the influence of alcohol or drugs presents potential safety hazards which need to be addressed immediately. The effects of alcohol can impair both mental and motor functions of a worker, including coordination, judgement and ability to respond quickly - especially in emergency situations. Whether the teacher has already done something that is putting their own or students’ safety at risk or they have the potential to do so, the school must assess the risk and take immediate action.
Under most circumstances, after questioning the employee and any key witnesses, the teacher will be sent home. In some circumstances, for example if the teacher appears unable to answer questions and there is no smell of alcohol on their breath, seeking medical assistance may be necessary.
The school must ensure that the employee can get home safely. This may mean taking away car keys, or more appropriately, arranging for them to get home.
Disciplinary
Under the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth), depending on the circumstances, being drunk while at work may constitute serious misconduct and be sufficient grounds for termination without notice. But as always, this is subject to due process being followed.
It is important as a risk management step that the school ensures that all staff have a clear understanding that attending work under the influence of alcohol or illegal drugs, or consuming alcohol during the work day or on the school premises without authorisation from the principal (or other authorised person), is prohibited and may result in disciplinary action up to and including dismissal. Reference should also be made to not drinking while on school camps or similar excursions while the teacher is in charge of students. Most schools are likely to have such a policy or it may even be included in their contract of employment.
However, once it has been drawn to the school's attention that a teacher (or other staff member) may be under the influence of something which is affecting their behaviour, the leadership team will need to make decisions based on due process. The first step in such matters is often trying to identify the nature of the problem - is the cause alcohol, drugs or a health issue. Some of the symptoms can be very similar, such as dizziness, slurred speech, and unsteady walk. Determining whether the issue is prescription drugs or illegal drugs is also an issue for how the school should respond in terms of disciplinary action. If you can, question the person, and any witnesses. Having two people present during questioning is recommended, and taking notes of the teacher’s behaviour, responses, and for example, if they smelt of alcohol. Notes should be taken.
The school does not have the right to force the teacher to submit to drug or alcohol testing. If the teacher insists that they are not under the influence of alcohol or drugs, they may be asked if they would submit to a test. It is important that if they agree, then the testing is carried out at certified testing facility. Under most circumstances a school will not be taking this action.
If it is established that the teacher was under the influence of alcohol, illegal drugs, or misused prescription medication, determining the appropriate disciplinary action is the next quagmire. An investigation must be conducted including giving the employee an opportunity to have a support person present at an interview, and the opportunity to respond to any allegations. The employee may be required to provide medical evidence to support any contentions of health issues. However, the investigation could result in finding that the teacher's behaviour did constitute misconduct, strict disciplinary action may not be the most appropriate solution.
Teacher Health Issues
Although being under the influence of alcohol or drugs while working is unacceptable, the School Governance articles recently published about the sources of stress for teachers at school may give some insight into why teachers may abuse alcohol. For example:
In investigating the misbehaviour, the school must consider the reasons which may have caused it. Even if the stressors which have led to the alcohol or drug issue are not work-related, as a fair and compassionate employer the school should investigate whether options other than disciplinary action may assist in getting the teacher back on track. Depending upon the seriousness and duration of the problem, it may be appropriate to require the person to undertake counselling or rehabilitation measures as an explicit alternative to disciplinary action being taken against them, or even before they can return to work. Other measures to consider where the stress is work-related is to providing mentoring, closer monitoring and supervision, and reviewing practices and workload.
While finding a teacher under the influence of drugs and alcohol requires immediate action to remove the teacher from any student-facing work, the steps which follow require care and thought.
