Suzette Martin v Northland Education Trust Incorporated
 NZEmpC 34
IN THE EMPLOYMENT COURT AUCKLAND
In The Matter Of a challenge to a determination of the Employment Relations Authority
Richard Harrison, counsel for plaintiff
Stephen Langton and Ronelle Tomkinson, counsel for defendant
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.
The issues were: whether the plaintiff was justifiably dismissed under s103A Employment Relations Act 2000 (“ERA”) (justification); whether the Trust had breached s4(1A) ERA (good faith) by not passing on information relevant to the allegation she faced; if M was unjustifiably dismissed, whether she was entitled to compensation; and whether she had made reasonable attempts to mitigate her loss.
Held: M was neither cavalier nor careless about her obligation to obtain consent for the use of her teaching materials. A fair and reasonable employer, given the circumstances at the time, would have concluded that it was an innocent mistake. Nor was M culpable for the presentation to her students of the modern explanation because the school's approved Longman text contained the original text, including the objectionable words, phrases and content and an explanation of the meaning of some of those. The Trust had failed to compare the two versions as they should have. The Trust's focus on the objectionable text had distracted them from undertaking a balanced and objective exercise. Nor had the Trust taken into account its own failures to provide M with appropriate educational resources and support, which had led M to obtaining her own resources.
The school had also failed to inform M about two pieces of information relevant to the serious allegations she faced under s4(1A) Employment Relations Act 2000 (“ERA”) (good faith). M should have been given an opportunity to comment on that.
The Trust did not consider matters in a balanced way. It did not consider matters of the degree of culpability, her inadvertence as opposed to deliberation and the professional consequences to M. This was shown by its own failure to adhere to its obligations in law and report M's summary dismissal to the Teacher Registration Board, which could have lead to a risk of professional censure or possibly deregistration. The monumentality of the defendant's decision to dismiss summarily for serious misconduct meant that the Trust ought, as a fair and reasonable employer in all the circumstances, to have taken this and associated considerations into account but failed to do so. That was especially so as her dismissal stigmatised M as a corrupter and moral defiler of students.
Although in some cases a single mistake by an employee of a sufficiently important requirement could justify summary dismissal, this was not a such a case. A fair and reasonable employer in the circumstances would not have dismissed M summarily for serious misconduct.
M had limited her claims and had focused on the restoration of her good name. There was a substantial amount of evidence relating to M's unsuccessful attempts to obtain teaching positions but that all began several months after her dismissal. She had taken employment as hotel receptionist and cleaner but had not sought reimbursement of lost remuneration from the time she took up that position. Therefore the Court could only award the statutory minimum of three months lost remuneration of $12,710.00.
M had gone from living independently with her daughter, to moving in with her mother to make ends meet. She has also had to deal with the stigma of the reasons for her dismissal, that being that she had corrupted and morally defiled her students. While the Trust genuinely may have held this belief, it was important to say that M had not done so. The circumstances warranted an award of monetary compensation under s123(1)(c)(i) ERA (remedies) of $15,000.00.
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.
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.
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.
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.
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.
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.
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.
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.
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...
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