LLB, BA, B.Ed, PG Dip Child Advocacy, Employment Lawyer
As the school’s professional leader and the Board’s Chief 4. Ensure the Board has complied with its obligation to advise you of the potential outcome of the meeting (i.e. what Executive you will have numerous meetings with your Chair, disciplinary action you may be facing); and has provided you your Board and various sub-committees, as well as with parents, with everything you need to consider your response. staff, professional groups, and community members. You will It is unfortunately not uncommon for a principal to meet with have your own processes for managing those meetings. But it is a different story if the Board want to meet to hear the Board Chair on another matter only to be told that there your response to complaints or about potential disciplinary are issues with the principal’s conduct or performance, and that or competency matters. If you are the subject of a complaint, it is in the principal’s best interests to take ‘discretionary leave’ face potential disciplinary action, or are subject to competency while the matter is resolved because if the principal has to be processes then the collective agreement entitles you to be advised suspended the Board is obliged to report the problems to the in writing first about the specific matters causing concern. It is Education Council. The lack of logic in the proposition should wise to contact a legal advisor at this point or your own legal be clear- but probably not to a principal who has just been told they are in trouble and given no chance advice scheme. You do not necessarily to take advice. A Board is entitled to need to announce that you are contacting The Board has a suspend the principal only if the matter your legal advisor but can just quietly is serious and there is some risk to the give them a call; it is often better to keep statutory obligation school in leaving the principal in charge things low key rather than risk escalating to be a fair and and the allegations turn out to be true. matters unnecessarily. In most instances your legal adviser can remain in the reasonable employer But if the allegations are sufficiently serious to justify a suspension, the Board background while advising you as to how has no choice but to report the matter a meeting might best be managed, but if and must be properly to the Education Council whether the you do need a lawyer to represent you at communicative with principal takes leave or not. So if a a meeting then you can take one. principal is told it is in their interests to The Board has a statutory obligation you. take discretionary leave they are almost to be a fair and reasonable employer and must be properly communicative with you. That means they always being misled; there is no situation which is sufficiently must comply with the requirements of the collective agreement serious to justify suspension but not sufficiently serious to require (which simply reflect the general law). You should never be a report to the Council. If you find yourself in that situation put ‘on the spot’ at a meeting by being required to provide an remember that the Board must consult with you and allow you immediate answer to allegations about which you have had no to take advice before it can decide to suspend you. There is no prior notice before you have had a reasonable opportunity to advantage to you in agreeing to take leave rather than being consider how best to respond and take advice if the matter is suspended. You should not agree to do so and if it is suggested serious. My advice to principals who are asked to respond to your best option is to tell the Board that you wish to take legal potentially serious allegations in a meeting without being given advice before responding to the proposal. If the response is to a proper opportunity to consider their response and take advice suspend you then you are almost certainly in a stronger position is to listen to the complaints, obtain more detail if necessary and than if you had taken the Chair’s ‘advice’. At any meeting, including one which may be described as then to say they will give the matter some thought and get back ‘informal’ it is not OK for your Board to: to the Board as soon as possible. If you are asked to attend a disciplinary meeting then I suggest 1. Ambush you with allegations that you did not know about and that you; require your immediate response; 1. Do not agree to attend the meeting unless you have had sufficient time to prepare and to contact your legal advisor; 2. If the Board insists on holding the meeting simply listen to what they have to say but do not respond immediately; 3. Contact your legal advisor as soon as possible, and provide details of the complaint(s) or issues and how you propose to respond;
2. Call the meeting ‘informal’ if it has possible consequences for your employment such as a warning or dismissal; 3. Talk you into taking discretionary leave while the issues are investigated; 4. Encourage or pressure you to sign settlement agreements without first being able to seek advice;
5. Suggest that you leave gracefully as a better option than a report to the Education Council or dismissal; or 6. Abuse or threaten you;
These may sound like outlandish suggestions, but all of these things have happened to NZPF members over the last couple of years. It is not uncommon for principals to need legal advice at some stage in their career, and when things are busy and you are juggling the many competing demands for your attention it can be difficult to identify the point at which you might need to seek help. It only takes the appointment of a new Board, one rogue Trustee, or an unreasonable and persistent parent determined to make your life difficult to turn an otherwise benign situation into a full on employment dispute. Most principals will be aware of at least one colleague who has experienced a dramatic change in their relationship with their Board of Trustees, from a friendly and cooperative ‘business as usual’ to an unpleasant ‘mission impossible’; a change which usually leaves the principal somewhat bewildered about how things reached that point. The first thing to remember is that it is unlikely to be helpful to simply bury your head in the sand and hope it all goes away. In some instances principals who have tried to cooperate with persistent unreasonable conduct from their Board have ended up cooperating themselves out of a job. It is equally unhelpful for principals to overreact and become defensive, as that risks escalating a situation that would have been better resolved informally.
If you become aware of issues that could affect your employment and your relationship with your Board, then make sure you contact your legal advisor as soon as possible, even if turns out that you do not require legal advice at the time. It is certainly easier to resolve potential problems when your legal advisor has been involved from the start, and even easier if the problems are avoided altogether. Leaving gracefully Some principals decide that life is too short to spend stressful months defending unreasonable complaints from their Board, and just want to leave. If you end up at that point it is still important to contact your legal advisor before agreeing to anything or signing a formal settlement. Principals have been known to contact their legal advisor only after signing an exit agreement with their Board, when they have had time to reflect on the situation and regretted agreeing to resign, or consider the settlement itself to be unreasonable. Unfortunately it is often too late for a legal advisor to assist at that point. If it is what the principal wants, then a legal advisor can usually negotiate some kind of exit package after taking steps to ensure that everything has been done to obtain the best outcome possible and all of the relevant factors have been considered. If dealing with complaints from the Board is causing you to be unwell, you are entitled to take sick leave if necessary. You are also entitled to refuse to be rushed at any point and to take the time you need to consult with your advisor and consider your options. But it is equally important to remember that most Boards of Trustees are not attempting to subvert proper processes. There will be many situations in which the Board has absolutely no intention of taking action against the principal and is simply trying to establish the best way to respond to a complaint. The Board is entitled to expect you to be communicative in that situation and do all you can to assist. The school would grind to a halt if you were not prepared to discuss any possible criticism without taking legal advice. But while you are being communicative, you do need be on the alert for signs that the situation is not developing into one in which you are being required to justify your conduct or performance and the Board or Chair does not appear to be supportive. In short, contact legal advice before taking action on matters which could affect your employment. If your advisor can help they will, and if they can’t help with a particular matter because it is really an issue for the Board’s advisers they will explain why that is, and will usually be able to advise on what steps to take in order to avoid problems arising for you personally.
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