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Employment Today, HR Solutions - Thomson Reuters

Employment Today, HR Solutions - Thomson Reuters



Employment Today Magazine

Public sector—Secrets, lies and compromise

Corbin Child looks at an employment dispute that culminated in both sides seeking penalties against the other, on one side for speaking out-of-turn, and on the other for failing to speak-up.

IN A RECENT DECISION OF the Employment Relations Authority, a teacher previously employed by a school in Nelson claimed that he was constructively dismissed because the board of trustees disclosed confidential information about his employment to the school community. For its part, the board sought penalties against the teacher because he did not give adequate notice after resigning.

The decision is a useful reminder to employers of the importance of keeping details of settlements confidential. It also emphasises that both employees and employers can be ordered to pay a penalty if they breach the terms of an employment agreement.

WHAT HAPPENED?

The board employed the teacher as a special educational needs coordinator (SENCO) and as a house master of a boarding house.

In 2017, the teacher resigned from his house master role, but remained employed as a SENCO. The board and the teacher agreed to the resignation at a mediation and recorded this in a confidential settlement agreement.

After the mediation, the principal told his wife about the terms of the settlement. The principal’s wife then sent some of the details of the settlement to the teacher’s wife in a text message.

The teacher’s resignation became a hot topic within the school community. The teacher alleged that students and their parents were gossiping about him because his replacement as house master had disclosed the circumstances of his resignation.

The gossip became all too much for the teacher who decided to look for another job. He accepted a new job in April 2017 with a start date of June 2017.

During the intervening months he filled out application forms and even completed a pre-employment drug test. All of this was kept secret from the board.

Finally, on the last working day before he was due to start his new job, the teacher gave notice that he was ending his employment. He went on to say “I trust that given the circumstances and recent events the short notice won’t inconvenience the school and you will waive any notice period”. The board did not waive the notice period of four weeks.

WHAT DID THE AUTHORITY DECIDE?

The Authority found that the board breached its confidentiality obligation because the principal disclosed the terms of the settlement to his wife.

In contrast, the Authority determined that the replacement house master’s disclosures were not a breach because the information he shared with the school community was already public knowledge.

The Authority considered whether the board ought to be penalised for its breach of the settlement agreement, but ultimately decided not to award a penalty. This was because the disclosure was a one-off and there was no need to deter the board from engaging in similar conduct in the future.

The Authority then turned to the board’s claim against the teacher for failing to give notice after he resigned. The lack of notice appeared to be malicious. However, the Authority was persuaded to reduce the penalty because the teacher said he kept his new job a secret in the hope that his relationship with the board could be patched-up.

The teacher’s claim that he had been constructively dismissed was dismissed and no penalties were awarded against the board. The teacher was fined $1000.

Jenkins v Nelson College Board of Trustees [2018] NZERA Christchurch 66

CORBIN CHILD is a senior solicitor at Heaney & Partners in Auckland. Visit: www.heaneypartners.com

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