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Education Law Articles - Dismissal

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Unfair Dismissal at 65

Reaching the age of retirement is not fair grounds for dismissal. A recent decision of the Federal Court affirmed that the age of 65 constitutes a voluntary retirement age. Employees are entitled to work beyond this provided they are capable of performing their duties.

Mr Cheng had worked at a Thai restaurant for 15 years. He took his long service leave and then, upon returning to work, was informed that he was rostered on for part time work.

Over the course of several escalating communications, Mr Cheng was told that Company policy dictated that the business did not employ anyone who reached 65.

The Federal Court found that this statement did not reflect a substantive policy of the business and added that, in any event, such a policy would be discriminatory. Therefore, Mr Cheng was successful with his unfair dismissal application.

This is a helpful reminder that schools should not presume that their teachers will voluntarily retire at 65, as they are entitled to work beyond this provided they are capable of performing their duties.

Interestingly, the business and its directors also received substantial fines for failing to keep adequate records relating to employee leave entitlement and termination.

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The Importance of Fairness

Mr Lewis had been a teacher at an Auckland school for 20 years. In February 2008, his department head made a complaint to the School Board alleging workplace bullying. In response, the Board wrote to Mr Lewis outlining the nature of the complaint, informing him of the formation of an investigative subcommittee, and inviting him to respond.

Over the next few months, the subcommittee repeatedly requested input from Mr Lewis on the investigation. He failed to provide any detailed submissions but did tell the subcommittee that he had made a separate complaint to the NZ Ministry of Education regarding the school’s handling of the matter thus far. On 15 April 2008 the Board, following a recommendation of the subcommittee, decided to terminate Mr Lewis’ employment immediately on the grounds of serious misconduct.

Mr Lewis took the matter to Court, where it was found that the school had made a number of serious procedural errors. Significantly, the school failed to follow its own complaints policy when dealing with the original complaint. Under the school’s policy, the complaint should have initially been handled informally by the principal.

The school also failed to ensure that Mr Lewis obtained independent professional advice. Although they had advised Mr Lewis to be represented at all times, the Court held that this was insufficient considering that the process could result in Mr Lewis losing his job and his ability to continue to teach, that the Board had set minimal time limits for Mr Lewis to respond to their allegations, that the Board knew that Mr Lewis had been suffering from ill health during this time and that there was a severe power imbalance between Mr Lewis and the school as the school had legal advice at all times.

The Court also had serious issues with the makeup of the subcommittee. One lady was on the sub-committee even though she was a witness, complainant and decision maker. The Court found this to be an improper and inextricable conflict of interest. Because of these procedural errors, the Court found that Mr Lewis had been dismissed unjustifiably.

In conclusion, the Court noted that the case had become needlessly legalistic at the expense of professional education input. It also felt that the unfortunate situation could have been avoided altogether if the school had put in place collegial support systems for isolated teachers in circumstances such as those in which Mr Lewis found himself.

This case highlights the need for schools to adhere to their own policies and to ensure that their employees are at all times afforded procedural fairness when complaints are made against them. Following these principles can save your school a great amount of time and money!
 


The Importance of Fairness

Mr Lewis had been a teacher at an Auckland school for 20 years. In February 2008, his department head made a complaint to the School Board alleging workplace bullying. In response, the Board wrote to Mr Lewis outlining the nature of the complaint, informing him of the formation of an investigative subcommittee, and inviting him to respond.

Over the next few months, the subcommittee repeatedly requested input from Mr Lewis on the investigation. He failed to provide any detailed submissions but did tell the subcommittee that he had made a separate complaint to the NZ Ministry of Education regarding the school’s handling of the matter thus far. On 15 April 2008 the Board, following a recommendation of the subcommittee, decided to terminate Mr Lewis’ employment immediately on the grounds of serious misconduct.

Mr Lewis took the matter to Court, where it was found that the school had made a number of serious procedural errors. Significantly, the school failed to follow its own complaints policy when dealing with the original complaint. Under the school’s policy, the complaint should have initially been handled informally by the principal.

The school also failed to ensure that Mr Lewis obtained independent professional advice. Although they had advised Mr Lewis to be represented at all times, the Court held that this was insufficient considering that the process could result in Mr Lewis losing his job and his ability to continue to teach, that the Board had set minimal time limits for Mr Lewis to respond to their allegations, that the Board knew that Mr Lewis had been suffering from ill health during this time and that there was a severe power imbalance between Mr Lewis and the school as the school had legal advice at all times.
The Court also had serious issues with the makeup of the subcommittee. One lady was on the sub-committee even though she was a witness, complainant and decision maker. The Court found this to be an improper and inextricable conflict of interest. Because of these procedural errors, the Court found that Mr Lewis had been dismissed unjustifiably.

In conclusion, the Court noted that the case had become needlessly legalistic at the expense of professional education input. It also felt that the unfortunate situation could have been avoided altogether if the school had put in place collegial support systems for isolated teachers in circumstances such as those in which Mr Lewis found himself.

This case highlights the need for schools to adhere to their own policies and to ensure that their employees are at all times afforded procedural fairness when complaints are made against them. Following these principles can save your school a great amount of time and money!


Question about dismissal?
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