| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 255 |
| Hearing date | 21 Nov 2012 |
| Determination date | 23 November 2012 |
| Member | D Appleton |
| Representation | R Harrison ; P MacDonald |
| Location | Christchurch |
| Parties | Taylor v Christchurch Girls' High School Board of Trustees |
| Summary | INJUNCTION – Applicant sought interim reinstatement – Applicant claimed unjustifiably dismissed by respondent – Authority found respondent did not give substantive detail of incidents which led respondent to conclude serious concerns about applicant needed to be investigated – Found respondent’s refusal to provide further information about concerns appeared strongly to be in breach of respondent’s good faith obligations – Found reasonable employer would have accommodated applicant’s request to postpone disciplinary meeting in circumstances – Found respondent’s statement before disciplinary meeting respondent had lost trust and confidence in applicant strongly suggested predetermination – Found respondent blurred misconduct and competence concerns – Found very strong evidence suggesting dismissal procedurally and possibly substantively unjustified – Found practicable for applicant to work with school senior management team – Found possible to ensure meetings between school hostel manager (“G”) and applicant took place with another staff member present until G felt safe – Found practicable for applicant to work with G – Found relationship between applicant and respondent chairperson had seriously broken down but respondent could implement action plan to greatly assist with resolving parties’ issues – Found likely disruption if applicant reinstated lessened if interim reinstatement subject to conditions – Found interim reinstatement both practicable and reasonable – Found matter finely balanced but overall justice of matter favoured applicant - Application for interim reinstatement granted subject to conditions – School Principal |
| Abstract | Applicant employed by respondent as school principal. Applicant sought interim reinstatement. Applicant claimed unjustifiably dismissed by respondent. Respondent claimed applicant justifiably dismissed as parties’ employment relationship had irretrievably broken down. Applicant subject to performance appraisal by independent consultant (“A”) including staff survey. A concluded applicant met all professional standards to at least satisfactory level but 20 per cent of survey respondents expressed frustrations and concerns about applicant’s leadership. A advised parties implementation of performance agreement required so applicant could reflect on survey feedback. Performance agreement not implemented. Two months later respondent sent applicant letter identifying concerns including respondent’s difficulty in gaining applicant’s cooperation with respondent’s initiatives. Parties held meeting and applicant told not disciplinary in nature. Applicant denied agreeing at meeting had been “serious trust and confidence breakdown” and instead claimed parties had discussed “working relationship issues” at meeting. Parties attended mediation. Applicant claimed mediation did not result in agreed processes or similar outcomes. Review of Education Review Office (“ERO”) stated concerned by relationship between parties and although respondent had engaged independent consultant issues remained unresolved. Respondent prepared action plan to address concerns as required but action plan not implemented. Respondent sent applicant letter (“letter”) stating had lost trust and confidence in applicant’s leadership of school and applicant invited to attend disciplinary meeting. Letter’s concerns included concern relationship between applicant and school management had broken down. Letter’s attachments included copy of ERO reports and comments made by school’s assistant and deputy principals (“senior management”) and hostel manager (“G”). Senior management claimed applicant did not sustain senior management’s trust and respect. G claimed interrogated by applicant and felt unsafe “professionally and personally.” Applicant requested further detail of concerns and later meeting date. Respondent claimed had already given applicant all relevant information. Applicant claimed willing to attend meeting once received requested information and when applicant’s representative (“H”) available. Respondent claimed applicant had ample opportunity to request adjournment of meeting previously, had rescheduled meeting several times and matter urgent. Respondent proceeded with meeting without applicant present. Applicant dismissed. Respondent chairman (“M”) claimed immediate loss of senior staff to ill-health or stress very likely if applicant reinstated. Applicant claimed issues with senior management and G exaggerated and on day-to-day basis relationship had been working well.;AUTHORITY FOUND –;INJUNCTION: Letter and letter’s attachments did not give substantive detail of incidents which led respondent to conclude serious concerns about applicant needed to be investigated. Impossible for applicant to know which incidents led respondent to believe relationship between applicant and senior management had broken down or what incidents G referring to. Respondent’s refusal to provide further information appeared strongly to be in breach of respondent’s good faith obligations. Although H left it very late to tell respondent could not attend disciplinary meeting on initial date, reasonable employer would have accommodated applicant’s request to postpone meeting in circumstances. Disciplinary meeting rescheduled only twice and no evidence that such urgency existed that respondent could not wait few more days. Respondent did not appear to consider suspension of applicant as alternative. Respondent’s statement before disciplinary meeting respondent had lost trust and confidence in applicant strongly suggested predetermination. Failure to warn applicant dismissal possible outcome before respondent sent letter procedural failing. Respondent blurred allegations of misconduct and competence. Very strong evidence suggesting dismissal procedurally and possibly substantively unjustified. Authority noted senior management did not provide sworn affidavits. Authority unable to assess senior management’s evidence objectively without specific examples. Authority preferred applicant’s sworn evidence able to work with senior management with facilitator’s assistance. Applicant did not have opportunity to engage with G about G’s concerns. Possible to ensure meetings between G and applicant took place with another staff member present until G felt safe. Practicable for applicant to work with senior management and G. Relationship between applicant and M had seriously broken down but respondent could implement action plan to assist with resolution of parties’ issues. Applicant’s reinstatement likely to cause disruption and would be subject to close scrutiny. However much media attention due to respondent’s actions and likely disruption lessened if interim reinstatement subject to conditions. Interim reinstatement both practicable and reasonable. Likely disruption if applicant reinstated potentially significant factor in favour of respondent. Likely applicant’s prospects of securing new employment harmed and damages not adequate remedy if applicant’s personal grievance successful. Matter finely balanced but overall justice of matter favoured applicant. Application for interim reinstatement granted subject to conditions. |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | Education Act 1989 ss78L;ERA s3;ERA s4;ERA s4(1A)(a);ERA s4(1A)(b);ERA s4(1A)(c);ERA s103A(2);ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s125;ERA s127;ERA s127(2);ERA s160(2);Official Information Act |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Lewis v Howick College Board of Trustees (2010) 7 NZELR 539;New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1994] 2 ERNZ 414;Orme v Eagle Technology Group Ltd unreported, Goddard CJ, 15 June 1995, WEC40/95;Wellington Free Ambulance Service Inc v Adams [2010] ERNZ 128;X v Y Ltd and NZ Stock Exchange [1992] 1 ERNZ 863 |
| Number of Pages | 35 |
| PDF File Link: | 2012_NZERA_Christchurch_255.pdf [pdf 337 KB] |