Independent Schools of New Zealand Annual Regional Meetings August 2015

1. Independent Schools of New ZealandAnnual Regional MeetingsAugust 2015 Shan Wilson Partner DDI: +64 9 977 5114 Fax: +64 9 977 5083 Mob: +64 275 322 737 shan.wilson@simpsongrierson.com

2. Overview • St Bede’s College case • Recent employment case of note • Campbell v Commissioner of Salford School • Vulnerable Children Act 2014 and Guidelines • Health and Safety Reform Bill - update

3. St Bede’s College Kennedy v Boyle [2015] NZHC 536

4. Point of Interest • When will a disciplinary decision less than a “stand-down” or “suspension” be reviewable by the Court?

5. Facts • Two students rode on baggage carousel at Auckland Airport when on way to Maardi Cup – went into a restricted area, criminal offence (only given warning by Police) • Rector of St Bede’s: students not to row in Cup, ordered to return to school • Parents of students launched judicial review proceedings in HC • HC granted interim injunction

6. What was being reviewed? • Parents claimed it was effectively a suspension of the students (ss 13-19 of Education Act 1989) • This is incorrect – students made to return to school, simply prevented from attending sporting event • Therefore had to be review of principal’s discretion under s 76 of the Act

7. S 76 Education Act 1989 76 Principals (1) A school’s principal is the board’s chief executive in relation to the school’s control and management. (2) Except to the extent that any enactment, or the general law of New Zealand, provides otherwise, the principal— (a) shall comply with the board’s general policy directions; and (b) subject to paragraph (a), has complete discretion to manage as the principal thinks fit the school’s day-to-day administration.

8. Should interim injunction have been granted? • Dunningham J: serious question because arguable natural justice not followed (teacher did not witness incident; did not interview students or others involved) • Also, arguable principal had not fully considered proportionality of consequences to misbehaviour

9. Should interim injunction have been granted? • Court did not consider difference between comprehensive regime covering suspensions in ss 13-19, and the broad discretion in s 76 • Natural justice point difficult: students had admitted what they had done • Because exercise of broad discretion, only real question: “Was this a decision that no reasonable principal could have made?”

10. Should interim injunction have been granted? • Did not consider other cases e.g., Maddever v Umawera School BOT • In that case, HC: Court should be reluctant to interfere in management or administrative decisions of schools that do not seriously affect the rights of students to receive a free education • Claim was struck out

11. Should interim injunction have been granted? • Overall, under-reasoned decision by Judge – did not appreciate differences between wide discretion in s 76 and regime ss 13-19 • Surprising that interim injunction was granted - effectively a final decision

12. Recent employment case of note

13. Campbell v Commissioner of Salford School (27 July 2015) • Investigation started October 2012 around ERO “allegations” about misconduct • 8 November 2012: LSM Mr Macdonald appointed (to work with BOT on employment matters) • LSM met with 10 former teachers: all had left due to Campbell’s management style, but all too scared to make formal complaints • LSM considered Campbell difficult to work with • Campbell’s “manner frightening”; “bullying management style”

14. Campbell - facts • However, Campbell did make improvements after ERO report • SLT formed and more positive and constructive • Performance appraisal of Campbell – appraiser concerned at disparity of views • Staff questionnaire in June 2013

15. Campbell - facts • Unsuccessful mediation • Campbell suggested alternative to investigation: expert to facilitate professional development (rejected) • Investigation went ahead with Chair and Lawyer (Sept 2013)

16. Campbell - facts • Chair of Board and other board members resigned 31 October 2013, resolution that Ministry appoint Commissioner • Staff became divided in views • “Proposal to suspend” Ms Campbell made Friday 1 November 2013 • Ms Campbell not given opportunity to respond before statement sent out; then suspended

17. Campbell - facts • Commissioner appointed • Investigation meeting: • Campbell acknowledged management style needed to changeand noted was taking steps • Final report on 4 February 2014 • Found Principal failed to see unhappiness she responsible for • Queried if improvement sustainable Campbell dismissed 6 March 2014

18. Campbell - decision • Employers of teachers must act to a very high standard when their disciplinary decisions can have severe consequences for registration – Edwards referred to • The more serious the allegation, the higher the expected standard of proof

19. Campbell - decision • Unjustified dismissal and suspension: • Two relevant collective agreements • Both drew careful distinction between issues of competency and disciplinary issues – the School’s decision did not draw careful distinction

20. Campbell - decision • LSM did not put in place performance objectives, despite recommendation to do so • LSM did not sufficiently take into account positive feedback about Ms Campbell • No sufficient explanation given for why LSM did not go performance route, and focused on conduct matters • Suspension was not substantively justified; and not procedurally justified

21. Campbell - dismissal • Bevan wearing two hats – LSM’s legal advisor, and investigator – distinct appearance of bias and unfair for Ms Campbell to have to participate in this investigation • Investigation faced several limitations e.g., not interviewing everyone – allegedly not cost-effective to go back and put Campbell’s POV to interviewees

22. Campbell - dismissal • Dismissal unjustified because: • Specific matters not identified for Ms Campbell to reply to; • Delay in instituting investigation significant breach of duty of trust and confidence; • Findings influenced by confidential information; • Distinction between performance and conduct not considered • Employer should have introduced stringent performance objectives & followed that through to competency process • Possible that process, with individual assistance and guidance, could have remedied issues

23. Campbell - remedies • Reinstatement not reasonable and practicable – still polarised views at school about Ms C’s leadership • Full reimbursement of lost remuneration (8 months), reduced by 30% for contribution • Hurt & humiliation awards: $12,000 for suspension; $22,000 for dismissal – reduced by 30% (total $22,400)

24. Vulnerable Children Act 2014 and Guidelines

25. Vulnerable Children Act 2014 – Safety Checks • Came into force 1 July 2014 • Vulnerable Children (Requirements for Safety Checks of Children’s Workers) Regulations 2015 published end of May 2015 • Safety checks had to be in place for all new core children’s workers by 1 July 2015 • Safety checks to be repeated for core workers every three years

26. Vulnerable Children Act 2014 • Apply to private schools registered under Education Act • Also applies if school receives any partial government funding

27. Vulnerable Children Act 2014 – who is affected? • Core workers: someone whose work requires, or allows them, to be alone with children; or requires them to have primary responsibility for, or authority over children present • May include librarians, lifeguards, school bus drivers, out of school care providers, early childhood centres and services provided at a public hospital.

28. Vulnerable Children Act 2014 – safety checks • Confirmation of applicant’s identity • Undertaking a Police vet • The gathering of other information (including a chronological summary of the individual’s work history for preceding five years, an interview with candidate and undertaking reference checks) • Conducting a risk assessment

29. Vulnerable Children Act 2014 – child protection policy • All school boards must have child protection policy - not in force yet, by 1 July 2016 at latest • Must contain provisions on identification and reporting of child abuse and neglect • Must require contractors to have child protection policy too if providing children’s services

30. Vulnerable Children Act 2014 – child protection policy • Issues for policies: • Who supervises kids during off-site excursions, and how are they checked out? • Procedure for child being left in care of another parent for excursion or unexplained circumstances • Policy around pop-in visits by parents – sign-in? • Blended families – who to liaise with? • How are relief teachers informed of relevant protection, parenting, trespass orders? • Procedure if unknown adult comes to pick up child, or a parent when not that parent’s day to do so?

31. Health and Safety Reform Bill

32. Update • Reported back from Select Committee 24 July 2015 • Most changes not major – but for small employers of less than 20, employee participation requirements reduced

33. Overview • Board members of Independent Schools – volunteer officers? • Officers • Abestos regulations • Trespassers

34. PCBUs • School is a “PCBU” in Act – person conducting a business or undertaking • Primary duty owed by PCBU: must ensure health and safety of workers working for PCBU so far as is reasonably practicable • Officers: owe duty of due diligence – make sure PCBU fulfilling its duties

35. PCBUs – duty of engagement • Requirement for PCBU to engage with workers on health and safety matters • Engagement requires: • Sharing relevant H&S information with workers • Giving workers an opportunity to express views and contribute to decision-making process • Uncertain how far this duty will extend - do PCBUs have to consult with all workers or only those directly engaged? • Australian counterparts have experienced difficulties with the consultation requirements

36. Health and Safety Representatives • Workers can request (or PCBU can initiate) the election of one or more H&S representatives • H&S representatives have wide functions, including: • investigating H&S complaints by workgroup members • inquiring into anything that appears to be an H&S risk • monitoring and reporting to PCBU on compliance with Act • Broad range of powers, including to: • enter and inspect workplace at any reasonable time • request any information necessary to perform functions • attend interviews between workers and PCBU or inspector

37. Board members – volunteers • State school boards of trustees exempted from officer liability under s47(2)(d) • BUT exemption not apply to directors or trustees of Independent Schools, as not set up as BOT under Education Act • Possible Independent School board member may be volunteer (where no stipend, fee discount)

38. Board members – officers • Officer includes: exercise significant influence over the management of the business or undertaking • Excludes: person who merely advises or makes recommendations • Volunteer: defined as person acting on a voluntary basis, whether or not receive out of pocket expenses

39. Board members – volunteer officers • Volunteer officers will owe due diligence duty (officer duty) but will be exempt if failure - general exemption to liability for volunteers in clause 46 • Worksafe: minimise risk of prosecution for officers who act on purely voluntary basis • Still liable for breaches of own H&S obligations: • Workers’ duties • Duties of other people at the workplace

40. DueDiligenceObligations

41. Other officers • Will certainly include Principals, who will owe full officer duties e.g., due diligence • May also include senior leadership team – may depend on how much influence individual senior leaders have

42. Volunteer worker exception Clause 14 In subsection (1)(h), a volunteer worker— (a) means a volunteer who carries out work in any capacity for a PCBU— (i) with the knowledge or consent of the PCBU; and (ii) on an ongoing and regular basis; and (iii) that is an integral part of the business or undertaking; but (b) does not include a volunteer undertaking any of the following voluntary work activities: (i) participating in a fund-raising activity: (ii) assisting with sports or recreation for an educational institute, sports club, or recreation club: (iii) assisting with activities for an educational institute outside the premises of the educational institution: (iv) providing care for another person in the volunteer’s home.

43. Asbestos • Health and Safety at Work (Asbestos) Regulations 2015 – Worksafe currently consulting • PCBUs not to carry out or allow workers to carry out work with asbestos, followed by list of exceptions • PCBUs must identify asbestos at workplace • If present, Asbestos Management Plan

44. Trespass • A PCBU who manages or controls a workplace (or plant, fixtures, fittings) does not owe duty of care to someone at the workplace for an unlawful purpose • Do schools give implied licence to people to come onto the land? If school locked up on weekends/holidays etc then will not be liable to people who come on to the land and hurt themselves

45. Timetable • Bill passed its First Reading on 13 March 2014 • Submissions on the Bill closed 9 May 2014 • Bill reported back from Select Committee 24 July 2015 • Currently being debated – Government SOP released 19 August • May be passed this week

46. Shan WilsonPartnershan.wilson@simpsongrierson.com+64 9 977 5114+64 27 532 2737