Where concerns are raised a school Board has a duty to take them seriously. Actively promoting a safe school environment is a statutory obligation, reinforced under the Code of Conduct for Board members:
I actively promote a safe school environment. I speak up when I see unethical behaviour. I treat all concerns raised seriously. I encourage an open culture where all staff, communities and students feel safe speaking up.
But ‘taking all concerns seriously’ does not mean that all concerns are so serious that the Board must implement formal and serious processes. The Board’s response must be balanced, fair, reasonable, and proportionate in the circumstances. Some triage may be required, and an assessment of the appropriate policy or process to follow. Consideration should be given, for example, to whether an email titled ‘Formal Complaint’ might more properly be described as an expression of opinion about the principal’s leadership.
Where health and safety matters are raised, such as work-related stress, bullying, or burn-out, the Board has a duty to consider the concerns and if necessary take action to address them.
That duty applies whether the matters are raised openly or anonymously, but the Board’s response to an anonymous concern or complaint should be quite different to its response to a concern or complaint from someone prepared to put their name to it.
For example, an anonymous letter from a staff member to the Board saying that the principal is too demanding and has unreasonable expectations about workload might lead to an informal chat between the Presiding Member and principal and a discussion about how things are going from a management perspective. In most circumstances, a principal would be concerned to hear that a staff member felt they were being overworked, and would welcome the opportunity to reflect, review, and consider how the situation might be addressed constructively.
It is highly unlikely that an anonymous letter about the principal could justify the Board imposing a performance improvement plan on the principal, or treating the letter as a complaint in a formal disciplinary context.
Anonymous complaints
Nevertheless we are finding that Boards sometimes rely on anonymous ‘complaints’ about the principal to implement ‘performance improvement processes’ or formal investigation processes, while refusing to provide details to the principal because they have promised the complainant anonymity. This is neither fair nor reasonable, and exposes the principal to significant and unnecessary risk.
Employers and employees have obligations under the Employment Relations Act to act in good faith. That includes being open, honest, communicative, and responsive, in maintaining a productive employment relationship. Where an allegation is made against any employee, including a school principal, that employee has a fundamental right to all of the information about the matter. They also need an opportunity to directly respond and comment on that information and the allegations before any decisions are made by the employer.
An employee’s ability to respond in any meaningful way to allegations is likely to be affected by knowing the identity of a complainant or a witness. There may have been a prior incident or disagreement with the complainant, or (as is not uncommon) there may be performance issues the employee was genuinely attempting to address, or the complainant may simply have ulterior motives. Withholding the identity of a complainant or witness conflicts with an employee’s fundamental right to information needed to defend themselves.
There may be genuine reasons why a staff member or parent might prefer to keep their identity secret when raising a concern. It could be that they fear retaliation for themselves or their child, or they may wish to prevent further conflict or disharmony in the workplace. It is rare that an employer can maintain the anonymity of a complainant or witness and at the same time discharge its obligation to the employee being accused. The Court and Authority set a very high threshold for school Boards to be good employers. Board Members should therefore be very mindful of giving assurances that they will maintain a person’s identity as anonymous if they are the receiver of a concern or complaint.
What if the information is disclosed under the Protected Disclosures Act 2000?
The Protected Disclosures (Protection of Whistleblowers) Act 2022 replaced the Protected Disclosures Act 2000 on 1 July 2022. The purpose of the 2022 Act is to facilitate the disclosure and investigation of serious wrongdoing in the workplace and to provide protection for employees and others who report concerns.
A ‘protected disclosure’ under the Act is the disclosure of information in good faith by a discloser who believes on reasonable grounds that there is or has been, serious wrongdoing in or by the discloser’s organisation. A common term for the people involved in this type of disclosure is a ‘whistleblower’.
A discloser includes a person who is, or was formally, an employee; a homeworker; a secondee to the organisation; a contractor, or a volunteer. You will see this does not include a parent, caregiver or whānau in the context of a school. The Act will not apply to these people unless they meet another category of ‘discloser’ such as an employee or volunteer.
Serious wrongdoing includes any act, omission, or course of conduct in (or by) any organisation that is:
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an offence;
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a serious risk to, public health, public safety, the health or safety of any individual, or the environment; or
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a serious risk to the maintenance of law; or
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oppressive, unlawfully discriminatory, or grossly negligent, or that is gross mismanagement (in a public sector organisation).
In our view, instances of sexual harassment, bullying, child welfare, or protection could fall under the category of serious risk to the health and safety of an individual.
Disclosers receive certain protections under this Act regarding confidentiality and immunity from civil, criminal and disciplinary meetings. Even when a disclosure is made in accordance with this Act, there is a specific requirement to disclose the complainant’s name if the principles of natural justice require it. As above, the principles of natural justice in an employment context will require the disclosure of all relevant information to an employee to ensure they can respond to any allegations against them. A disclosure made under this Act will not justify an employer withholding relevant information including relevant person’s identities.
Exit interviews
Like anonymous complaints, exit surveys should be handled cautiously.
Teachers and other staff members resign for a variety of reasons, including promotion or for the big OE. Other staff members leave because they are dissatisfied with the school for some reason, and it is not uncommon for a departing staff member to express concerns about the school in an exit interview. The feedback is important. If those staff members had been satisfied, or if (in the instance of the fixed-term teacher) they had been successful in obtaining a permanent position, then they would not have left. But if a departing staff member raises new matters not previously raised with the principal, then a Board would need to be very cautious about taking any formal action against the principal.
Anonymous surveys can also raise themes or elements of discontent. Further enquiries are likely appropriate to ascertain the basis of the information and whether there is a specific allegation being made before any formal next steps could be considered. It can be very damaging to the relationship between the principal and the Board, and undermining of the principal’s leadership, if the Board allow people to raise concerns ‘anonymously’ and take steps to manage those concerns when the concerns are anonymous only to the principal.
Conclusions
Schools will need to deal with anonymous concerns or complaints on a case-by-case basis and in accordance with their policies and procedures. It is very rare that an employer can maintain the anonymity of a complainant and still follow a fair and reasonable process.
Without considering the next steps, schools should not make assurances of anonymity. They should carefully explain that to effectively investigate any matters, the identity of the complainant will likely need to be disclosed.