Associate | Anderson Lloyd | d +64 3 471 5433 | m +64 27 556 2378
The NZPF Principals’ Advice and Support Scheme has been providing legal support to principals since 2005, when it superseded a different scheme supported by an Insurance Company, QBE. Between 2005 and the present the scheme has paid out $1,237,699. That is a considerable benefit to members. Given the uncertainties of the future, you may well be advised to cover yourself by joining the scheme. [Editor]. The NZPF Principals’ Advice and Support Scheme provides a ‘Hotline’ service where its members can access prompt legal advice on matters affecting their employment. We are frequently asked questions starting with, ‘Can my Board . . . ,’ and these are things that principals need to know. Can my Board make me take discretionary leave? Discretionary leave is a means by which a fair and reasonable Board can support a principal who needs some time off work. It is not a convenient way of suspending the principal without having to follow due process. The Primary Principals’ Collective employment agreement provides as follows; 7.8 Discretionary Leave 7.8.1 The employer may, where there are special circumstances, grant discretionary leave with or without pay to any principal during periods when the school is officially open for instruction, provided that such leave does not unreasonably impinge upon the operational requirements of the school. Before approving any discretionary leave, the employer shall ensure that the granting of such leave complies with any funding arrangements applying to the school in respect of such leave. (Note: Where leave is granted for family reasons, family shall include: partner, child, sister, brother, parent, grandparent, grandchild, kaumatua, mokopuna, tamaiti whangai, matua whangai, near relative, near relative-in-law, a member of the household or a person dependent on the principal.) 7.8.2 The employer shall give favourable consideration to granting discretionary leave to a principal who is absent from work to attend to a dependent of the principal. One principal who was feeling stressed and under pressure was delighted to be offered a couple of days discretionary leave by what he thought was a supportive Chair. He accepted, but was then dismayed to discover the Chair had no intention of allowing him back at school when the Chair accidentally copied him into an email to all Board members in which he said that he had suspended the principal. A Board (or Statutory Manager) may ‘grant’ discretionary
leave, but cannot impose it on an unwilling principal who would prefer to be at school. Nor can a Board require a Principal to stay away from school on ‘special leave.’ There is no such provision in the collective. In a recent Employment Relations Authority Determination a Principal successfully challenged her enforced special leave, and the Board was ordered to allow her to return to school. The Authority Determined that when the Board told the principal she must take special leave it was a suspension, for which the collective employment agreement says; Suspension 8.5.1
(a) If the alleged conduct is deemed sufficiently serious a principal may be either suspended with or without pay or transferred temporarily to other duties.
(b) The Board shall not, unless there are exceptional circumstances, suspend the principal without first allowing the principal a reasonable opportunity to make submissions to the Board about the alleged misconduct and the appropriateness of suspension in all of the circumstances. The Board shall take into account any submissions made by the principal before determining the matter of suspension.
(c) The Board shall use its best endeavours to ensure that the period of suspension is kept to the minimum possible consistent with ensuring that the allegations of misconduct are properly investigated and that the principal is treated fairly at all times.
(d) If the allegation that led to suspension is without substance the principal shall, unless he/she has resigned in the interim, be entitled to resume duties immediately and, if suspended without pay, to have that pay re-instated from the date of suspension.
None of those procedural requirements had been met. The Board was entitled to investigate its concerns about the principal’s performance, but it was required to do so in accordance with the statutory and contractual processes. In imposing special leave the Board failed to act in the manner of a fair and reasonable employer and the Authority Determined that the principal should be allowed to return to school. An offer of discretionary or special leave will usually be genuine and well-meant. But if you have any concerns about the situation, or if you are not actually given a choice, we suggest you take time to consider the offer and take advice before agreeing to take leave. You are entitled to have a reasonable opportunity to do so.
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MAGAZINE
You can now access the current and past issues of NZ Principal magazine online
Auckland – 28 & 29 September An outstanding opportunity for professionals to upskill. Internationally recognised experts will share their evidence-based strategies and resources to help those who struggle with literacy: DR LILLIAN FAWCETT (AUSTRALIA): Creator of the highly acclaimed Cracking the ABC Code programme; PROFESSOR PAMELA SNOW (AUSTRALIA): Psychologist, speech pathologist, author and researcher with a special interest in language and literacy vulnerability in the early school years and adolescence; SARAH SHARPE (NZ): Educational consultant and creator of Kapiti College’s highly successful specialist programme for neurodiverse learners. For more details, see SPELD NZ’s website: www.speld.org.nz/news-events/speld-conference-2019 For details on SPELD NZ courses see: www.speld.org.nz/our-services/training or call 0800 773 536. Scholarships available in some areas..
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