Articles

Serious Misconduct by Employees of an Education Institution

Thursday August 18, 2016

Blair Scotland is a Partner at Dundas Street Employment lawyers, a specialist boutique employment law firm. He joined Ashleigh Tesluk of Legalwise Seminars to discuss the biggest challenges facing schools today with respect to serious employment misconduct.

You can hear directly from Blair at the upcoming Education Law Conference in Wellington on Friday 16 September 2016.

You can find the transcript of the Q&A below.

Can you tell us a little bit about yourself, Blair?

I am a Partner at Dundas Street Employment Lawyers, which is a specialist boutique employment law form. In terms of my background, I have an LLM (Hons) and a BA (Criminology) from Victoria University. I was admitted to the Bar in 1997 and joined the public service, firstly with the Department of Internal Affairs and then the Ministry of Social Development. I then moved to Telecom New Zealand Limited in an employment law role, and subsequently worked for EMA and then in private legal practice.

What are the 3 big changes/challenges affecting schools in terms of Serious Misconduct outside the workplace in the last 12 months?

The biggest challenge for schools is managing an investigation and decision making process in the context of committee based decision making. Running a disciplinary process can be time consuming and require immediate and timely responses to what is occurring throughout the process. Being able to manage this, when Board Members are essentially volunteers and have a range of other commitment, can be difficult. Getting an independent investigator to investigate the factual situation can assist. However, this can be costly (if the investigator is properly qualified and experienced), and at the end of the investigation, the Board will still have to manage the disciplinary process themselves.

In terms of “out of work conduct” in particular, social media and online conduct continues to be a big issue in any profession where the employees need to be seen as “above reproach”. Teachers’ personal use of social media (and technology in general) can impinge on their employment, where that use is fundamentally inconsistent with their position as a teacher.

Another issue is how a School’s decision to enter into a “full and final settlement” interacts with their mandatory reporting obligations to the Education Council. Schools cannot promise employees that a full and final settlement with an employee will be the end of a matter, if the mandatory reporting criteria are met. This may make settlement much less attractive to the employee, and could ultimately result in more claims being pursued in the Employment Relations Authority. Further, if a school makes an allegation against an employee, whether or not it is founded, this could impact on the employee’s ability to obtain another position. In this regard, if they leave their employment within 12 months of an allegation being made, this could trigger reporting. Accordingly, some employees may be reluctant to leave their employment if it would result in a report to the Education Council – this ultimately may not be beneficial to the school if the relationship is strained.

Who has been most affected and why?

Social media issues are likely more risky in colleges, given the increased risk of students identifying teachers’ online activities. However, broadly speaking these issues affect all schools.

What is the one area that Principals and BOT members have underestimated/not fully appreciated and why?

There can be some confusion around who the decision maker is in a disciplinary process. Schools need to clearly understand themselves who the decision maker is, ensure the employee is aware of this, and then allow the employee the opportunity to directly address the decision before a decision is made.

What are 3 things/areas schools could focus on to prevent these types of incidents occurring?

Thinking carefully about what type of conduct would be unacceptable from the school’s perspective and ensuring this is carefully detailed in a policy. Schools should be consulting with employees where policies are being implemented or materially re-written. This consultation can serve to identify any issues or misunderstandings about what conduct is or is not acceptance.

Schools should also have clear policies and procedures which they can follow when unacceptable conduct is alleged to have occurred. This ensures the school knows what is expected of them, and the employee can understand the process that is being followed.

Schools should be well versed in the mandatory reporting requirements for the Education Council, and ensure they fully understand the implications and ongoing impact of making performance or conduct related allegations about an employee.

You can hear directly from Blair at the upcoming Education Law Conference in Wellington on Friday 16 September 2016.

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