PASL is seeing an increase in principals receiving a “Letter of Expectation” from their Board. These letters are not officially formal warnings, but they often set out purported wrongdoing and what the Board expects of the principal going forward.
While a Letter of Expectation can be an appropriate tool, it can also have real employment consequences. It might be relied upon by the Board if future issues arise and can lead the Board to move more quickly to a disciplinary process. For this reason, a Letter of Expectation can be a disadvantage to a principal. The question is whether it is justified or not. A couple of cases have dealt with this issue.
When is it appropriate?
In Massof v Inland Revenue, the Employment Relations Authority was asked to determine whether Ms Massof was unjustifiably disadvantaged by the issuing of a Letter of Expectation.
Ms Massof became aware that Inland Revenue (IR) was providing period products to staff by placing them in both male and female bathrooms. She made a post about this on the internal intranet, stating: “This is awesome but a shame it took so long coming. And interesting, now that men can menstruate, free period products are available in IR bathrooms.”
Some employees belonging to the rainbow community were offended by this comment. Ms Massof’s manager met with her, explained her concerns, gave Ms Massof an opportunity to speak in return, and then proceeded to outline her expectations going forward. A Letter of Expectation followed reminding Ms Massof of her obligations under the Code of Conduct. The letter told Ms Massof to exercise discretion when expressing her views, particularly when it could cause offence or division. The letter said if Ms Massof did not follow these expectations, there would be a discussion with management.
The Authority held that this letter did not disadvantage Ms Massof. They found that the letter reflected the minimum standards of professional behaviour that she was already bound to follow, it was kept confidential and not placed on her file, and there was no evidence it impacted her prospects for promotion or her status within IR.
When is it not appropriate?
The Authority determination can be contrasted with the Employment Court’s decision in Johnson v Chief of NZ Defence Force.
In this case, the NZ Defence Force (NZDF) believed Mr Johnson had sent a critical, anonymous email to the Deputy Prime Minister’s office. NZDF undertook an inquiry which the Court held was inadequate. NZDF subsequently wrote a letter to Mr Johnson stating no disciplinary process would be pursued but that a probability assessment showed it was very likely Mr Johnson had sent the email, although NZDF was willing to give him the benefit of the doubt on this occasion. The letter further said that Mr Johnson would need to undertake a “security refresher”, and that any incident of a similar nature or breach of security in the future would result in a disciplinary process.
Mr Johnson regarded the letter as being a formal record that his employer concluded he had very likely sent the email, and that the letter was in essence warning him not to do this again. The Court held he was plainly disadvantaged by the letter. It rendered Mr Johnson’s employment less secure by giving a warning that was not justified.
Actions need to be fair and reasonable
These cases demonstrate that Letters of Expectation have a legitimate place when used appropriately. However, in our experience, issues arise when a Board has not made proper enquiries before issuing a Letter of Expectation, including when the relevant concerns have not been put properly to the Principal for their explanation, and when the Letter is based on incorrect assessments or assumptions about the facts.
The fact that the letter is not an official warning is not a get-out-of-jail-free card for the Board. Under the Employment Relations Act, any action of the employer (whether disciplinary in nature or not) must meet the Test of Justification. The Test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the action occurred. A fair and reasonable employer would make sufficient enquiries about a concern, and consult with a principal and hear their views before issuing a Letter of Expectations stating or suggesting the principal is not meeting the standards expected.
A Letter of Expectation may also trigger a Teaching Council report if the principal resigns within 12 months. This is because of the low threshold for reporting requirements, which require Boards to make a report if they have advised the principal they were dissatisfied with any aspect of their conduct or competence in the 12 months prior to their termination of employment.
Getting advice and support
Boards should ensure concerns are properly considered and the principal is consulted before issuing such a letter. Principals should understand that, while the letter is not a formal warning, it can still carry employment consequences and can be challenged if not justified.
If you are a paid PASL member facing a tricky issue or needing advice, contact the PASL hotline for a chat: 03 477 3973. Remember, early notification of actual or potential issues is a condition of coverage under the scheme, and you must have an active NZPF membership to access it.