Education Law Series Part 3: Dealing with Employment Issues

26 Mar 21

Column written by Senior Associate Fi McMillan and published on the Legalwise website on Thursday 25 March 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 3, Fi continues by highlighting the employment issues that education professionals face, with a focus on how to avoid dealing with a claim under the Employment Relations Authority.

Most employment disputes, including those in schools, are resolved constructively at a low level. More serious disputes are usually resolved through mediation, and may include payment of a confidential settlement. A few disputes however will be resolved only through litigation, with either the school employee or the Board taking a claim to the Employment Relations Authority or the Employment Court. This can become very expensive for both parties and can take a considerable amount of time and energy.

We comment below on how to avoid being “the case” but note that employment issues cannot always be predicted and avoided. Sometimes they are the result of a “perfect storm” of circumstances and sometimes there is just one trigger which leads to an employee notifying and pursuing a personal grievance claim. However the dispute starts, it is important for the Board to be able to demonstrate that its actions were those of a fair and reasonable employer in all the circumstances at the time. Both parties must comply with good faith, which requires them to be active and constructive in establishing and maintaining a productive employment relationship in which they are, amongst other things, responsive and communicative with each other.

In the first instance the Courts have said in dealing with any employment issues a fair and reasonable employer would comply with its own policies, with the employee’s employment agreement, and with its statutory obligations. As in my first article in this series, you need to know the specific requirements of each collective employment agreement before taking any action, and you need to make sure that your policies are up-to-date and legally compliant. The Primary Principals’ collective provides for example that a Board may be able to justify having suspended its principal if it has done so because the allegations of misconduct were sufficiently serious and if it has complied with the procedural requirements in clause 8.5. Suspension is not however the appropriate process for dealing with performance concerns, and a suspension on that basis may well lead to reinstatement and compensation for the principal.

Issues can develop out of what seem to be small beginnings, so it is important to deal constructively with things as they arise rather than letting them escalate. Schools are particularly difficult workplaces because parents (including Board members) and other family members want the best for their children and their school community. But it is not a case of the end justifying the means. Boards have a statutory duty to be a good employer, and given the Teaching Council mandatory reporting requirements the Courts have said that Boards will be held to a high standard in dealing fairly and properly with any conduct and performance issues.

By way of example (and noting that this is a very brief summary of only some of the key issues) we refer to Mrs Fox, who was a teacher at Hereford School several years ago. Mrs Fox was, according to the Court decision, a well-regarded teacher overall, but she had concerns about how the school reported to parents. The school said it would conduct an independent investigation into her concerns, but failed to tell her that the investigation would be conducted by a member of its Board. The Court said that failure had misled Mrs Fox and had breached good faith. The Court also criticised the investigation process the school implemented. Mrs Fox’s concerns were not fully investigated and she was not provided with all of the information.

The situation escalated, and Mrs Fox was required to attend meetings to respond to allegations made by other staff against her. She was at that time being represented by her husband, in a manner the Court later described as confrontational and unreasonable; “Considerations such as civility, discretion, concessions where necessary or appropriate, and diplomacy, were notable by their absence.” Mrs Fox said she felt physically threatened and fearful about some of the school’s correspondence; interpretations which the Court found unreasonable, but Mrs Fox would not meet until the school apologised. She notified several grievances of unjustified disadvantage and unjustified dismissal.

Overall both parties were found to have behaved unreasonably but it was the Board as the employer which was required to justify its actions. It could not, and Mrs Fox successfully established that she had been unjustifiably dismissed. She was awarded lost wages and financial compensation, both of which were then significantly reduced to reflect the contribution of her own conduct.

The Chief Judge of the Employment Court, who heard the case, added a brief commentary to his written decision as an “Overview and observation,” in an attempt to assist the parties and others in similar circumstances for the future. He noted that Mrs Fox’s “uncompromising defiance” had been unhelpful, as had been the school’s “best means of defence was attack” approach. The Chief Judge identified several opportunities where the parties could have “pulled back from the brink” and tried to resolve their worsening differences.

This importance of following a fair process at all times, and identifying any opportunities for a constructive resolution of any issues, has been applied several times recently, for example in the Maday v Avondale College Board of Trustees case. There, the Authority referred to several “weigh stations” where the school could have corrected previous procedural mistakes which had tainted the process. In particular the school had relied on anonymous complaints against Mrs Maday, and had implemented disciplinary and competency processes against her. This was unfair.

Employment matters are not easy to deal with, and Boards should take appropriate advice if required. In order to minimise risk of a complaint is important to be properly prepared in terms of having robust policies that are well understood by all members of the school community, and are consistent with statutory and contractual requirements. It is then important to be prepared to follow them fairly and in accordance with good faith.

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Fi McMillan