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Dealing with Difficult Parents

Unwarranted and unrealistic demands - long aggressive emails – raised voices and a total absence of any sense of proportion or reality – then a lawsuit!!  We hope that your school never has to deal with parents like these – but just in case you do …


Background

Early in 2009 a family moved to London from France.  The three children in the family (two boys aged 10 years and a girl aged 8) were accepted into Hall Schools of Wimbledon.   Everyone at the school agreed that the children were delightful.

The two boys in the family were academically gifted.  The girl had a minor issue relating to memory and needed a bit more attention in class.  However, her academic results still fell within the range of what was considered “normal” for her age.  

The problems between the school and the family lay solely with the parents (particularly the mother).  The parents had the attitude that nothing was acceptable other than their children being awarded full marks for tests and assignments and achieving excellent results in sports. If these results were not achieved (in the minds of the parents) they would demand explanations from the staff and bombard the school with aggressive emails and letters. The mother even complained about her daughter being given grade A as opposed to A+!  The mother’s behaviour had become so alarming that eventually she was not permitted to speak to teaching staff without the Principal being present.

The school had a very clear policy about parental behaviour.  It read:

"The school reserves the right to have a child withdrawn from the school when the parent or guardian of that child is guilty of serious or persistent misconduct in relation to a pupil, a member of staff, another parent or to the reputation of the school.”

By early July 2012 the school had endured enough.  The Principal wrote to the parents informing them

We therefore need to discuss an alternative solution for your children as it does not appear tenable for them to continue their education at this school”.  

The main points from the resulting meeting on 6 July 2012 were:

  1. The relationship between the school and the parents had irretrievably broken down;
  2. The children were in no way to blame;
  3. The children must leave the school as a consequence of the relationship breakdown;
  4. It would be better if the parents withdrew their children from the school rather than the school expelling the children as an expulsion would then be noted on the children’s school records;
  5. The next term’s fees would be waived;
  6. A short meeting with teachers would be permitted; and
  7. The Principal would write references for the children for the school that the parents sought for them.

The Court Case

The parents claimed that there was a breach of the alleged contract made at the meeting on 6 July 2012.  They said that the Principal of the Hall Schools had informed the Principal of Donhead School (the school in which they were trying to enrol the children) that “the parents were subject to a regime of not speaking to teaching staff without the presence of the Principal”.  As a result of this information Donhead School refused admission of the children. The parents also assert that the Principal of Hall Schools lied to cover up his dealings with the Principal of Donhead School. The parents sought damages and a permanent injunction restraining the Principal from repeating this information to other school principals.

The Principal of Donhead School said that during his meeting with the parents he had asked them why they were withdrawing their children from Hall Schools.  They told him it was due to “communication problems”.  As a part of this conversation the parents informed him that they were no longer able to see their sons’ teacher without the Principal of Hall Schools being present.  The Principal of Donhead School thought this unusual and raised the issue with the Principal of Hall Schools in a later phone call to him.  The Principal of Hall Schools did not initiate the conversation, simply confirmed the facts as presented to him.  

In his defence the Principal of Hall Schools stated “At no time during the meeting did I indicate that I would provide supporting references for the parents or agree not to disclose information about them, should I be asked to do so by another Principal. It would have been professionally negligent of me to do so and against custom and practice in the independent school section where Heads rely on open and honest communication between themselves. To prohibit the free-flow of information, between education professionals in situations such as this, would put children and schools at risk.”

So was there a cover-up?

The judge decided ABSOLUTELY NOT. He went on to say

To suggest the Principals were bare-faced liars was frankly outrageous.  They both told me honest and reliable evidence.  They leave this court as honest and honourable men as they arrived. “

So was there a breach of contract?

The judge did not believe that there was a fresh contract entered into on 6 July 2012 when the parents were informed that the existing contract was at an end. The Principal had made it clear that the existing contract was at an end and the parents had agreed to withdraw the children from the school.  

The assertions by the parents against the Principal of Hall Schools were found to be comprehensively without foundation.

What can we learn?

Every teacher will need to deal with problem parents from time to time.  This case is a great example of what a school can do to protect themselves.  

  1. The school had a clause in their behaviour management policy stating what would happen if parental behaviour was unacceptable. 
  2. The school’s responses to aggressive correspondence were calm, rational and respectful. 
  3. Any major issues the parents raised in their correspondence was investigated and responded to.  
  4. Notes were taken. The judge noted that the notes were not always perfect or complete but also commented that they were completely appropriate for a school.

The judge in this case summed the matter up nicely:

The focus of any school should be upon the education and welfare of the children who attend. Of course, parents need to play a full role and take a keen interest in their children. All of that is right and proper. But equally, parents must, and most do, appreciate a school is a community that needs to be permitted to get on with its principal task of educating children collectively. No school should be bombarded with unwarrantable demands by parents. Teaching and other staff bear a heavy responsibility in what they do. Looking over their shoulder for fear of litigious parents is an aspect of their professional lives they could all do without.

It is also of critical importance that teachers and others of whatever rank feel able to express their view in references with candour
."

 if you would like some advice on dealing with problem parents.

 


 

Building 101

Child's Hands BuildingA recent NSW case is a good reminder to schools that do building work that they should be aware of all relevant legislation.

In most building projects, the builder subcontracts much of the work to other independent operators such as bricklayers, air-conditioning engineers, electricians, and so on. Many builders used to adopt the practice of delaying payments to subcontractors until they themselves had been paid by the owner. This practice puts financial stress on the subcontractor, especially where they have to pay for the cost of materials.

The Building & Construction Industry (Security of Payment) Act NSW (other states have similar provisions) provides a simplified process for dealing with payment claims by subcontractors. The subcontractor puts in a claim and, if it is not disputed within 10 business days, the subcontractor can register a court judgment against the builder.

In the recent case, the builder went bust and the school took over the project. The school entered into agreements with most of the subcontractors to retain them on the same basis as they had been contracted to the bankrupt builder. One of the subcontractors held out on signing the new agreement because it wanted the school to take over the builder’s liability for what the subcontractor said was $400,000 worth of work done before the builder went bust.

The subcontractor then made a claim against the school under the Act. The operation of the Act depends on there being a “construction contract”. The court held that, because the subcontractor had refused to sign the agreement with the school that the other subcontractors had signed, there was no construction contract that brought the Act into play. The school was either well advised or lucky. Don’t rely on getting lucky. Building matters can become very complex when key players go into liquidation. Get good advice quickly.
 


Unfair Contract Terms:
How's your Enrolment Contract?

Hands signing contractThe Australian Competition and Consumer Commission has instituted proceedings in the Federal Court against ByteCard Pty. Limited (better known as Netspeed Internet Communications) alleging that a number of clauses in its standard form consumer contracts are unfair contract terms and should be declared void. This signals an intention by the ACCC to enforce the reasonably new unfair contract terms provisions under the Australian Consumer Law.

ByteCard is an Internet Service Provider that provides internet connectivity, domain registration, hosting and web design. One of the clauses among its standard terms allows ByteCard to unilaterally terminate the contract at any time with or without cause or reason. The ACCC is seeking a declaration that this and other terms are unfair.

School enrolment contracts are standard form consumer contracts to which the Australian Consumer Law applies just as much as to ByteCard. As Emil Ford Lawyers review school enrolment terms, we often see clauses that purport to allow the Principal the unfettered right to terminate a child’s enrolment and end the enrolment contract. Schools around Australia that have not reviewed and, where necessary, rewritten their enrolment documents since 1 July 2010 when the national unfair contract terms laws came into effect ought to do so as a priority lest they too become the focus of ACCC attention.
 


Misrepresentation

Section 52 of the Trade Practices Act says that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Each of the States has comparable provisions (e.g. Section 42 of the Fair Trading Act, NSW) but these are not limited to corporations. Schools must be mindful of these provisions when drafting their prospectus or other marketing brochures.

Schools engage in trade or commerce when they distribute brochures or a prospectus. For an action against a school for misrepresentation to be successful, the claimant must prove that:

  1. the school made a misrepresentation; that is, that its conduct in all the circumstances conveyed a representation that was inconsistent with the truth;
  2. the misrepresentation was misleading or deceptive; that is, that the school’s conduct led the claimant into error or misconception;
  3. the claimant relied on the misrepresentation; that is, he or she was induced to do something or refrain from doing something as a result of the misrepresentation;
  4. as a result, the claimant suffered loss or damage.

Where it is alleged that a brochure contains misleading or deceptive representations, the test is whether what is written is misleading, deceptive or likely to mislead or deceive a reasonable person - a hypothetical person who is an ordinary or reasonable member of the class of persons who will see the brochure. Accordingly, reactions to the statements in the brochure that are extreme or fanciful are excluded as being unreasonable. Similarly, strained, false or unreasonable interpretations are rejected. Where only a part of the brochure is relied upon as being misleading or deceptive, that part must be read in the context of the whole.

One must ask how the ordinary, reasonable reader would understand the publication.
Once misrepresentation has been shown, a formal disclaimer won't be effective. If a disclaimer is to be effective, it must have the effect of making the conduct as a whole (including the provision of the document containing the disclaimer) not misleading.

It isn't relevant that the school didn't intend to mislead or deceive. Accordingly, there doesn't need to be evidence of actual deception, although that will be required before damages will be awarded.
 


Court aids recovery of fees

Early in 2006, Mr & Mrs Wright tried to enrol their two boys at a School in Tasmania. The School offered places by letter in April 2006. As is common, the parents had to accept the offer by a particular date by signing various enrolment forms and by paying a deposit. One of the forms included a commitment by the parents to pay fees. The boys didn't start on the planned date because the deposit hadn't been paid. Then, the School allowed the boys to start when the father’s employer wrote to the School saying it would pay the deposit. But this did not happen. Nor were the fees for the first term paid when due. The parents bought the boys new school uniforms from the school shop, paying by post-dated cheque which bounced. A fortnight later, the deposit and uniforms had been paid for but not the fees. The parents then offered to pay the fees for the rest of the year by monthly instalments. The School accepted this proposal provided there was a direct debit arrangement put in place. This did not happen. The saga of failure to adhere to further fee payment proposals continued for many months and the total of unpaid fees kept mounting. Does this story sound familiar? No doubt, many business managers will nod their heads.

By October, the School gave notice of its intention to terminate its agreement with the parents effective 12 December 2006, the last day of the school year. The parents responded by going to court to get a declaration that such a termination would be unlawful.

The parents paid the outstanding 2006 fees on 8 December. The Court noted that the parents were clearly in breach of contract when the School gave the termination notice. The parents tried to argue that the School could not terminate for such a breach as it was reasonable that they have until the end of the year to pay the fees. The Court said: “The School operates a business. It enters into contracts with parents to provide a service and parents agree to pay fees for that service. It is an express term of the contract entered into that such fees are payable as and when they fall due.” The Court said the School could quite properly take into account the parents’ history of failing to make payments, failing to adhere to payment arrangements and the dishonoured cheque when assessing the likelihood of being paid in future. Accordingly, the School was entitled to end the contract and the parents failed to get the declaration they sought. The Court noted that the situation in which the boys were placed was extremely unfortunate. However, it was one created wholly by their parents’ actions.
 


More misleading and deceptive conduct claims

Claims by students alleging misleading and deceptive conduct under section 42 of the NSW Fair Trading Act 1987 are becoming more common. In October 2007, the Consumer, Trader and Tenancy Tribunal dismissed a claim for damages by a student enrolled in a program aimed at introducing international students to undergraduate study in Australian universities, by providing a university entrance course.

The student claimed that he did not receive what he bargained for because the course was held in a building undergoing renovation and, as a result, was very distracting, noisy, dusty and dirty, and caused him to suffer asthma attacks. He also maintained that the university had misrepresented the facilities and services, such as computer and library services, which would be available to him during the course as well as the poor English and interpersonal skills of a relief teacher. As a result, the student argued that his enjoyment of the course and its effectiveness were diminished.

However, the Tribunal found that the majority of the work was done in building areas that were not being used by the students, that there was no supporting evidence that the student's asthma was caused by the renovation, and that computers and library services were available to students. The student also failed to provide any details of the inadequacies of the relief teacher or how this affected his academic performance. He did in fact successfully complete the course.

Fortunately, the course provider had good records and could point to action taken to deal with any disadvantage caused by the building renovations.
 


Misrepresentation

Section 52 of the Trade Practices Act says that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Each of the States has comparable provisions (e.g. Section 42 of the Fair Trading Act, NSW) but these are not limited to corporations. Schools must be mindful of these provisions when drafting their prospectus or other marketing brochures.
 

Schools engage in trade or commerce when they distribute brochures or a prospectus. For an action against a school for misrepresentation to be successful, the claimant must prove that:

  1. the school made a misrepresentation; that is, that its conduct in all the circumstances conveyed a representation that was inconsistent with the truth;
  2.  the misrepresentation was misleading or deceptive; that is, that the school’s conduct led the claimant into error or misconception;
  3. the claimant relied on the misrepresentation; that is, he or she was induced to do something or refrain from doing something as a result of the misrepresentation;
  4. as a result, the claimant suffered loss or damage.
     

Where it is alleged that a brochure contains misleading or deceptive representations, the test is whether what is written is misleading, deceptive or likely to mislead or deceive a reasonable person - a hypothetical person who is an ordinary or reasonable member of the class of persons who will see the brochure. Accordingly, reactions to the statements in the brochure that are extreme or fanciful are excluded as being unreasonable. Similarly, strained, false or unreasonable interpretations are rejected. Where only a part of the brochure is relied upon as being misleading or deceptive, that part must be read in the context of the whole.


One must ask how the ordinary, reasonable reader would understand the publication.
Once misrepresentation has been shown, a formal disclaimer won't be effective. If a disclaimer is to be effective, it must have the effect of making the conduct as a whole (including the provision of the document containing the disclaimer) not misleading.
It isn't relevant that the school didn't intend to mislead or deceive. Accordingly, there doesn't need to be evidence of actual deception, although that will be required before damages will be awarded.
 


Unfair Contract Terms

Many will know that schools must not engage in conduct that is misleading or deceptive or is likely to mislead or deceive. The law on such matters was found in the Commonwealth Trade Practices Act and the states’ Fair Trading Acts. From 1 January 2011, these provisions will be moved from where they are now and will appear in the Australian Consumer Law. The Australian Consumer Law will be in a Schedule to the Trade Practices Act which will then change its name to the Competition and Consumer Act.
Moreover, the unfair contract terms in the Australian Consumer Law have applied from 1 July 2010 to all contracts entered into or varied after that date. A term of a consumer contract is void if:

  • the term is unfair; and
  • the contract is a standard form contract (e.g. a school enrolment contract).

Therefore, you need to know what a consumer contract is and what is unfair.

A consumer contract is a contract for a supply of services to an individual whose acquisition of the services is wholly or predominantly for personal, domestic or household use or consumption.

“Services” includes the services provided by an independent school. It seems to us that the acquisition of education services, at least at the school level, is very likely to be considered something which is acquired for personal use.

An unfair term is one which:
• causes significant imbalance between parties; and
• isn’t reasonably necessary to protect the School’s interests; and
• would cause detriment to the parents if it were to be applied or relied on.

Question about Contracts?
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