Fi McMillan, Senior Associate at Anderson Lloyd, continues her series on education law. In Part 4, she highlights the health and well-being that education professionals face and how it affects their health and their ability to perform their duties. Follow her series here.
It is well recognised that teaching is not a 9-to-5 job, school holidays are not holidays for the teachers, and that school leadership is very demanding as well as very rewarding. There are many resources available for dealing with stress, as well as ideas and strategies for supporting staff and caring for their health and well-being.
Ultimately however, if a staff member is suffering from a mental or physical illness which is affecting their health and their ability to perform their duties, then at some point it may be necessary to take formal action to address the situation. The Principal and Board have statutory duties to govern and manage the school, and to achieve the primary objectives set out in the Act, including that every student at the school is able to attain their highest possible standard in educational achievement and that the school is physically and emotionally safe for all staff and students.
Schools are structured to accommodate the temporary absence of staff members, and if the Principal is out of the school then the Deputy Principal or Assistant Principal will usually have delegated responsibility for the school’s management. Those schools with access to a pool of relieving teachers can more readily accommodate the absence of regular staff on sick leave. But extended or frequent intermittent absences can still affect student learning and student behaviour. The absence of regular staff can put additional pressure on the staff who remain, creating a potential health and safety issue for them as well as for their unwell colleague. The Board as employer, and the Principal as the Board’s CE and the school’s day-to-day manager, must consider the needs of all staff. If the long-term absence of a staff member is affecting school operations and putting students at risk then you may be able to implement medical incapacity procedures, and ultimately dismiss the staff member. This is not a quick fix process. You will need to be able to demonstrate that the staff member has been supported as much as possible in the circumstances, that all possible alternatives have been considered, and that you have genuinely engaged in consultation about options. The provisions of the relevant Collective Agreement and school policy will apply. We suggest you take specific advice before proceeding.
If you have concerns about a staff member’s mental health or well-being at work then it is important to take prompt steps to support them rather than letting it drag on so that the situation escalates. Health and well-being should be covered in school policy, but in the first instance it would usually be appropriate for the team leader or other manager to have an informal discussion about how things are going and whether any assistance may be required. Is the staff member overworked, are they taking regular (and statutorily required) rest and meal breaks, or are there any other issues affecting their ability to perform their duties?
We have frequently been asked for advice about dealing with what appear to be, or are presenting as, performance or conduct issues, when the employer is concerned that the real issue may be that the employee is affected by some level of mental illness. In those circumstances you may need to ask the employee whether they are prepared to visit their doctor and provide you with a medical certificate confirming they are well enough to be at work, or when they might be well enough to be back at work, prior to implementing any formal processes.
Boards are held to a high standard in terms of being a good employer, and these are not “one size fits all” situations. We suggest you take advice about the process and the options before getting underway. If you are going to implement more formal procedures then it is important you keep an open mind and avoid predetermining the outcome, clearly set out the specific issues and explain why they are a potential concern, and invite the staff member’s comment. If you are considering disciplinary or competency action then the staff member must be advised they are entitled to take independent advice before responding, and that they can bring a support person or representative to any meetings.
Dealing with staff members in good faith, and genuinely trying to support them at work, will be more likely to achieve a constructive resolution of any issues. It will also minimise the risk of a personal grievance further down the track.
Fi McMillan is a Senior Associate in our Employment Team. Based out of the Dunedin office, Fiona specialises in employment and education law. Fiona has been with the firm since 2007. Prior to becoming a lawyer Fiona worked as a primary school teacher, which puts her in a strong position to advise on legal issues affecting schools.
Fi’s career started in the education sector, including a Post Graduate Diploma in Child Advocacy, and teaching at primary schools in Otago and the United Kingdom, before moving into law.
Fi believes that experience in the workforce is a valuable asset for employment lawyers, to enable them to provide workable solutions to workplace issues. Her teaching experience means she can provide practical advice to education sector clients.
Fi loves working directly with clients and resolving legal issues. Where a client is in a dispute situation she prefers to start with the co-operative approach; exploring options for resolution of issues rather than launching straight into formal processes. However, she understands the need to stand up and fight, if necessary, and is always determined to obtain the best client outcome.
Fi is the legal advisor to the New Zealand Principals’ “Principals Advice and Support Scheme.” She is a past member of the Board of Trustees for Otago Girls’ High School, and the Board of Knox College and Salmond College.
