Education Law Series Part 1: Introduction and “Know Your Collective”

Column written by Senior Associate Fi McMillan and published on the Legalwise website on Thursday 12 November as part of her series on the NZPF Principals’ Advice and Support Scheme, which provides employment advice to school principals across New Zealand. In Part 1, Fi begins by discussing the complexities of matters affecting the principal personally as an employee.

A principal, as the day-to-day manager of the school and chief executive of the Board, must implement school policy, act in accordance with their delegated authorities, and comply with the multitude of statutory requirements relating to schools. The Board is the employer of all staff, but the principal must also act in the manner of a good employer, as they manage staff on a day to day basis.

That should be all relatively straight forward, but it can be more complicated when it comes to matters affecting the principal personally as an employee of the Board. Just like any other employee principals are entitled to be treated fairly and reasonably by their employer, and to the protection of the Employment Relations Act. Unfortunately, when things start getting complicated this is something that Boards can lose sight of, and sometimes principals are so focused on trying to “keep the peace” while dealing with staff, students, parents, the Board, the Ministry of Education etc., that they lose sight of the fact that they also have rights.

“Getting complicated” might include, for example, situations where a poorly performing teacher under performance management alleges that they are being bullied by the principal, or a parent refusing to accept that the principal cannot simply suspend a student who has fallen out with their child. Schools have statutory, policy, and contractual processes for dealing with these situations. If they do not comply with these processes then they will expose the school to risk and their decisions will be open to challenge.

We will look at the processes in more detail in our next articles, but at this stage take the opportunity to remind any school staff to get to know their own employment agreement. It is surprising how many staff members are unfamiliar with their own terms of employment. They can confidently refer to school policies, but if asked, for example, what their agreement says about the performance appraisal process the details are not always as clear. The contractual requirements are usually properly reflected in the school policies, but that is not something you should take for granted. If you do not know what your contractual rights are then you may be limiting your ability to properly defend yourself if you are suddenly faced with potential disciplinary or competency proceedings.

There are comprehensive employment agreements for schools, the terms of which have been negotiated by very experienced unions. In addition to setting out salary scales and terms such as sick leave or annual leave entitlements, the agreements set out specific contractual requirements for conducting performance appraisals, dealing with competency issues, and raising disciplinary matters. These contractual processes must be implemented in a fair and reasonable manner, and in accordance with the Employment Relations Act.

We have advised a number of principals who have, for example, agreed to go on discretionary or special leave when allegations have been raised against them because they believe they have no choice. They do; there is a contractual provision explaining when suspension might be justified, and the process the Board must follow in taking such a serious step. Being suspended without good reason can be stressful and humiliating, and can seriously undermine the principal at school. Given those consequences, and the potential for a report to the Teaching Council, the Courts have said that Boards of Trustees will be held to a high standard in terms of being a “good employer.” Any staff member facing suspension or told they must take “special leave,” is entitled to have a reasonable opportunity to take advice before responding. We strongly suggest that you do.

Link to Legalwise website.