New case note: Board of Trustees decision to expel student on basis of gross misconduct not justified
Chief Ombudsman Peter Boshier has recommended Macleans College in Auckland apologise to a student it expelled following an incident involving a teacher in 2019.
The student was suspended then expelled after he swore at a teacher following the incident over a device.
The student’s family complained about the process and the board of trustees conceded it had not been provided with all the relevant information 48 hours before the suspension hearing as required.
The family was also concerned that not enough was done to support the student in relation to counselling or pastoral support. The board acknowledged more could have been done to support the student.
However, it confirmed its view that the student’s conduct met the statutory threshold of gross misconduct.
It also said it did not pursue other disciplinary options as the student was not remorseful and it considered further misconduct was likely.
The Chief Ombudsman investigated whether the board followed a reasonable process in relation to all matters pertaining to the suspension hearing and whether the decision to expel the student had been reasonable.
He considered whether the single event that occurred met the threshold for gross misconduct required under Section 17 of the Education Act6 1989.
The Chief Ombudsman was not satisfied that the student and his family were provided with an adequate opportunity to comment. They were also not provided with all documents prior to the suspension hearing.
He noted that the Ministry of Education guidelines required the board of trustees to carry out a balancing exercise that included all relevant circumstances.
While the board appeared to have considered most of the relevant factors, there were question marks around others, and the record of deliberations were insufficiently detailed to enable to the Chief Ombudsman to be confident all relevant factors had been considered.
The Chief Ombudsman was not satisfied that the incident met the threshold for gross misconduct under Section 17 of the Education Act 1989 and noted that the guidelines required a high threshold for that.
The board of trustees maintained the behaviour constituted gross misconduct on the basis of its standards but the Chief Ombudsman noted judicial authority that a breach of school rules does not in itself meet the statutory requirement.
He considered that the board had overstated the harm of the student remaining at the school. While the behaviour was not ‘reprehensible to a high degree’ he accepted it needed a robust response.
However, he considered there were a large number of options the school could have considered.
The board undertook to ensure its processes were aligned with Ministry of Education guidelines and the Chief ombudsman recommended it apologise to the student and his family and amend the record to show the student should not have been expelled.
In response, the board of trustees confirmed it had complied with the recommendations.