Suzette Martin v Northland Education Trust Incorporated

• Jurisdiction: New Zealand
• Judge: G L COLGAN
• Judgment Date: 14 April 2011
• Court: Employment Court
• Docket Number: ARC 44/10
• Date: 14 April 2011

In The Matter Of a challenge to a determination of the Employment Relations Authority

Between

Suzette Martin

Plaintiff

and

Northland Education Trust Incorporated

Defendant

[2011] NZEmpC 34

Judge Colgan

ARC 44/10

IN THE EMPLOYMENT COURT AUCKLAND

Challenge to decision of the Employment Relations Authority finding that the plaintiff had not been unjustifiably dismissed — plaintiff was employed as a teacher at Brethren school — dismissed for using unapproved modern translation of King Lear — defendant objected to the offensive language used — school failed to inform plaintiff of information relevant to allegations under s4(1A) Employment Relations Act 2000 (good faith) — whether plaintiff was justifiably dismissed under s103A Employment Relations Act 2000 (justification) — if not, whether she was entitled to compensation — whether plaintiff had made appropriate attempts to mitigate her loss.

Appearances:

Richard Harrison, counsel for plaintiff

Stephen Langton and Ronelle Tomkinson, counsel for defendant

• 1. The plaintiff's challenge to the Employment Relations Authority's determination is allowed and the determination is set aside.

• 2. The plaintiff was dismissed unjustifiably by the defendant.

• 3. The plaintiff is entitled to $12,710 as compensation for lost remuneration and $15,000 compensation under s 123(1)(c)(i) of the Employment Relations Act 2000.

• 4. The plaintiff is entitled to costs in both this Court and in the Employment Relations Authority.

REASONS FOR JUDGMENT OF CHIEF JUDGE G L COLGAN

1 The question for decision in this challenge from a determination 1 of the Employment Relations Authority is whether Suzette Martin was dismissed justifiably from her employment as a teacher and, if so, the remedies to which she may be entitled.

Relevant facts

2 The Northland Education Trust Incorporated (the Trust) operates schools in the Northland region for children of families who are members of the religious group known as Exclusive Brethren. Although all students at these schools are members of that religious group, none of their teachers is. Ms Martin (although a practising Christian of another denomination and sharing many of the same moral and ethical values as the Brethren) was among those non-Exclusive Brethren teachers at the Trust's Westmount School campus in Kerikeri. The Trust's 15 Westmount schools throughout New Zealand and their teaching programmes adhere to the Exclusive Brethren principles and to a literal interpretation and application of the Christian Holy Bible.

3 Ms Martin's written employment agreement made this clear under the heading “ Ethos And Guiding Principles of the School Community” as follows:

1. The trustees are committed to a way of life which is governed at all times and in every detail by the Holy Bible. It is the duty of the trustees to ensure that all aspects of school life are in accord with the Holy Bible. The conduct of the students, staff and parents must reflect Bible values. The trustees have absolute discretion in determining what conduct or activity is in accord with the Bible.

4 Ms Martin's employment agreement required her to seek and obtain the approval of the defendant for her use of teaching materials. This was dealt with in her employment agreement as follows:

• 4. Only literature approved by the trustees may be brought onto the school premises. …

  …

• 7. Only teaching programmes approved by the Northland Education Trust will be implemented at Kerikeri. The trustees reserve the right to review the teaching practice at Kerikeri. The trustees desire that students be educated to tertiary education entrance level. Any activity that would promote interest by students in higher education (university or college) would be viewed very unfavourably.

  …

• 13. … All teachers employed by the Trust are employed on the basis that they will in all ways respect the deeply held feelings and conscience [of] the trustees and members of the community whilst engaged in employment for the trustees.

5 The disfavour with which university or other tertiary education of students is regarded by the trustees explains the need to engage outsiders as teachers and, therefore, the pains to which the trustees went in approving and controlling the teaching material and curriculum evidenced in Ms Martin's employment agreement.

6 Although having been engaged at the school temporarily beforehand, Ms Martin began as a permanent teacher with the Trust in February 2007. In addition to professional teaching qualifications, she has tertiary educational qualifications in English literature. At all relevant times Ms Martin was a registered teacher pursuant to Part 10 of the Education Act 1989.

7 For the first time in 2007 a year 13 class was made available at the school. In 2008 the Shakespearean play King Lear was included in the English programme as one of a specified set of plays in the curriculum for year 13 students of English. There are several published versions of the play, the distinguishing features of which are not the literal text but the accompanying glossaries, annotations, and footnotes which explain it and assist its analysis by students. The Trust approved not only the teaching of King Lear but also the Longman publication of the play which consisted of the original text, a glossary and limited additional commentary on it. The Trust's educational managers had ensured that the contents of the Longman version of King Lear were suitable in terms of church principles.

8 Shakespeare's King Lear is not a genteel depiction of 17 ^th century polite and restrained English society, well ordered and well mannered, a Constable painting put to words. 2 Rather, to continue the artistic analogy, it is a Bruegel picture 3 brought to life, written to entertain proletarian urban classes with bawdy, violent, profane, and sexual elements aplenty. If one reads or certainly studies Shakespeare, and King Lear in particular, these elements come with the territory. If one were to redact or excise even individual words that were objectionable to the defendant, let alone the subject matter or themes of the play, it would inevitably lose the attributes for which it is still studied by students more than 400 years later. It is therefore logical that the defendant did not seek to emasculate the Shakespearean text by what would necessarily have to be extensive censorship. Although it is perhaps surprising, in retrospect, that the school chose to include a Shakespearean play within the NCEA choices that it had and, especially, to study King Lear among the five Shakespearean plays permitted by the NCEA curriculum in 2009, the fact is that it did so and approved not only the original text but the Longman's interpretive notes as a teaching aid.

9 Ms Martin had such considerable professional difficulties with both the Shakespearean text and its modern translation, that in 2008 she abandoned teaching King Lear. She attempted to do so again in the second term of 2009 when the play was again included in the year 13 English programme. It was this second attempt to teach King Lear that led to Ms Martin's dismissal.

10 In early May 2009 Ms Martin approached Daryl Maden, one of the trustees of the Trust and its Chief Executive Officer, expressing her concern about the lack of approved supporting material for the study of that play. Mr Maden authorised Ms Martin to obtain such material as she considered necessary, but to obtain his approval before showing this to students.

11 Ms Martin was not alone in her belief that there was insufficient supporting material for teaching the play. Susan Corbett, the co-ordinator of the Northland campus, also expressed her concerns about a lack of unit planners for year 13 students with the Education Manager at the Westmount Education Trust (WET), Margaret Lees, in late May 2009. WET's role was to co-ordinate and manage the

several Westmount school campuses around the country and Ms Lees, in association with others, managed curriculum leaders who developed courses and teaching materials with individual schools, including how such materials would be applied locally. There was disagreement among the Trust's educationalists about unit planners: the Head of English at the school's Kaipara campus was said to have considered that teachers did not want unit planners. This and associated difficulties meant that Ms Martin was not able to be assisted to go beyond the by now almost foreign language Elizabethan text of the play to understand its themes and characters, essential elements in the teaching and examination of the subject. At the year 13 level such materials generally include academic writings on the text and suggested activities to enhance understandings of theme and character. Although there was a Ministry of Education website which provided access to such assistance, Ms Martin did not have the necessary access code to this

12 In these circumstances Ms Martin, after inquiry, accessed a website known as Sparknotes.com. Its contents are approved by the Ministry of Education to provide curriculum support in schools. Ms Martin located both a complete text of King Lear and a full and detailed modern English (American) translation which, during May 2009, she downloaded episodically. She subsequently distributed and used this material in her year 13 class. Its contents, however, were said to have made students embarrassed and uncomfortable. One element of the curriculum's study requirement was for students to make oral presentations of passages to their class and although recitation of offending words and phrases made students (and Ms Martin herself) more uncomfortable and embarrassed, she considered that she had no alternative but to persist with this to fulfil the requirements of the curriculum which she was required to teach. One student's father raised his concern with Mr Maden in June 2009.

13 Mr Maden...