Ashley-Jayne Lodge, Partner at Cavell Leitch discusses the disciplinary process in the education context ahead of her upcoming presentation at the Understanding the Disciplinary Process: Misconduct of Teachers and School Staff on Friday 13 November 2020.
Employment law is complex. Add to that the special nature of the education sector and it can be difficult to navigate even with the best intentions. This paper talks about investigations and the disciplinary process in the context of the education sector.
The Education and Training Act 2020 imposes a duty on Boards to be good employers. The Employment Relations Act 2000 imposes a duty on Boards as employers, and on employees as parties to the employment relationship, to deal with each other in good faith. The duty of good faith requires the parties to be active and constructive in establishing and maintaining a productive employment relationship in which they are responsive and communicative. It also requires an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of the employee’s employment (such as disciplinary action), to provide the affected employee with access to information relevant to that decision, and an opportunity to comment on the information before a decision is made.
It is against this background we must look at how Boards and Principals should manage and work through disciplinary issues.
Investigation
The starting point for any investigation is the employment agreement – whether individual or collective. Where the agreement sets out the process to be followed this must be adhered to unless it conflicts with obligations pursuant to the Employment Relations Act 2000.
The New Zealand education sector collective agreements, and the Employment Relations Act 2000, require the employer to advise the employee of the concerns, provide all relevant information, and a reasonable opportunity to respond before a decision is made. Usually, this will take the form of a letter to the employee setting out the allegations or concerns, providing all supporting information or evidence, and meeting with the employee and his or her representative to provide an opportunity to respond before a decision is made having considered the response.
Note that an attempt to informally resolve the issues is essential when the wording of the relevant collective or employment agreements requires it. In the 2017 case of Burrows and The Commissioner of Rangiora High School[1], the Employment Relations Authority found the employer had, among other failures, failed to comply with the collective agreement by not initiating informal discussions prior to formally commencing a disciplinary process. The Authority member noted that “Compliance with the provisions of the collective agreement are paramount.”[2]
It is possible to imagine situations where the informal discussion route is inappropriate, however wherever possible informal discussions should be commenced prior to commencing a disciplinary process.
An option for employers which we are seeing used increasingly often is the appointment of an independent investigator to conduct the investigation. This often occurs where the Principal, who would normally be tasked with conducting the investigation, is either the complainant, the person being complained about, or otherwise involved in the incident or issue being investigated. It is important when engaging an independent investigator to ensure the terms of engagement and reference are clear, and that in any outcome the employer can comply with its obligations under the Employment Relations Act 2000.
Decision making
Once the investigation is complete, whether internal or external, the employer must make a decision as to whether the allegations have been proven, whether the employee’s behaviour amounts to serious misconduct, misconduct, or neither, and then the appropriate sanction. Who is ‘the employer’ at this point becomes important.
Legally, the employer is the Board of Trustees for all staff including the Principal. In most schools, some employer responsibilities are delegated to the Principal, and/or a sub-committee of the Board. The Board and the Principal should be clear who the decision maker will be pursuant to the School delegations, and the employee under investigation must be aware of this.
Whether a dismissal or action by an employer was justifiable is measured by the test of justification set out in s 103A of the Employment Relations Act 2000. The Authority or Employment Court must make an objective assessment, considering:
- Whether the employer sufficiently investigated the allegations before taking the action, having regard to the resources available to it;
- Whether the employer raised the concerns with the employee, and the employee was given a reasonable opportunity to respond to those concerns before any action was taken; and
- Whether the employer genuinely considered the employee’s explanation (if any) in relation to the allegations before taking the action.
These factors are not exhaustive, with the Authority or Court able to take into consideration any other factors it thinks appropriate. In addition, the Authority or Court must not determine a dismissal or an action to be unjustified solely because of defects in the process that were minor and did not result in the employee being treated unfairly.
The Employment Court has said that employers of teachers must act to a high standard when dismissing, as that decision can result in both an immediate loss of job, but also has the potential to impact on the teacher’s ability to work long term as dismissal automatically triggers a professional registration investigation.[3]
Suspension
Each collective agreement in the education sector deals with suspension, and the relevant procedure must be followed.
Generally, suspensions must be reasonable and for a justifiable reason. Circumstances which are likely to justify suspension include where student safety is at risk, there is a health and safety risk or risks to students or other staff, or where there is a risk to others, including the complainant.
Only than in exceptional circumstances will an employer be justified in suspending an employee without first putting the proposal to suspend to the employee, seeking their response, and then genuinely considering that response.
Of course, in addition to the legal obligations, there are practical and logistical considerations to take into account when deciding on an appropriate and fair process. We suggest that a Principal or Board of Trustees embarking on a disciplinary process take legal advice to ensure that both the legal obligations of the school are complied with, and a pragmatic and fair process and solution can be achieved.
[1] [2017] NZERA Christchurch 8
[2] Ibid, at [312].
[3] Edwards v The Board of Trustees of Bay of Islands College [2015] NZEmpC 6 and Howick College Board of Trustees [2010] NZEmpC 4; [2010] ERNZ 1
Ashley-Jayne Lodge (AJ) leads our employment team and advises clients on all aspects of employment law working with them to provide practical, pragmatic solutions to often complex employment issues.
She has represented both employers and employees in the education sector, including from early childhood, primary, and secondary schools. AJ can assist employers, employees, and HR professionals with all manner of employment advice, including day to day management of employees, restructures and redundancies, employee claims, advising on and providing representation in human rights matters, and employment agreements and policies.
AJ represents clients at mediations, in the Employment Relations Authority, Employment Court, and Human Rights jurisdictions, as well as representing and advising sports players and clubs in disciplinary and general matters.
AJ also advises clients on their health and safety obligations under the new legislation, including representing those being investigated by WorkSafe.
