Teacher wins employment case.
September 16, 2017.
An early childhood teacher, whose life and health, along with that of her family, was thrown into turmoil following bullying by her centre manager, is by no means alone.
It would seem that early childhood education is not always a nice sector to work in. As many as 25% of staff working in the ECE sector experience work-place bullying according to the results of a nation-wide survey on early childhood education staff health and safety released in 2016. At kindergartens and childcare centres a much higher proportion of qualified teachers working in general teaching positions reported being bullied (34%), than managers, senior and head teachers and team leaders (18%) and untrained teachers (20%).
While it is known that workplace bullying exists in the early childhood sector we don’t have a good understanding of why this is not brought out into the open and dealt with properly.
The Employment Relations Authority prohibited publication of the names of the teacher “T”, her centre, the kindergarten association and its location “K”, the kindergarten head teacher “X” and witnesses. “T’s” advocate argued against a non-publication order, and the ERA’s decision was subsequently anonymised to allow publication of the case.
What anyone who has experienced systematic bullying by a superior knows is that it may take some time before you realise you are being bullied, because you are just trying to cope and keep going under stress.
According to the ERA, T had a clean disciplinary record and had not been subject to any performance concerns or processes. A former school teacher of 20 years, she decided to undertake training in early childhood education and following a practicum T was offered full-time employment as an early childhood teacher by K at one of its centres.
K upheld her complaint about X’s bullying.
And this is why at ChildForum we advise teachers and early childhood staff to keep a record of what happens and communications, along with any other documentation and evidence.
T was granted leave by K but asked to return to work under X before a safety plan for the return to work was finalised and agreed on. K effectively asked T to forgo her legal rights and settle the matter by returning to unsafe work conditions, or a non-return to work would be taken to mean that T had resigned.
According to reports, T was panic stricken at the thought of returning to the same environment in which the bullying had occurred and the safety issues this created. But she wanted to keep her job and had not said she was resigning.
As a member of the NZEI union, a representative assisted T and reviewed the draft back to work plan that K had drawn up for T. K had not provided T with a final version of the proposed work plan before requiring her to be back at work, nor had T been given a response to the specific concerns she had raised through her NZEI representative.
T would likely have felt stuck. She was required to return to work, in circumstances where she felt unsafe to do so, or it would be taken that she had resigned. T’s family was reliant on her income and the opportunities for continuing to work in early childhood education were limited unless she moved out of the area.
With the help of an advocate from CultureSafe NZ Ltd the issue was taken to the Employment Relations Authority.
The ERA found that T’s dismissal was procedurally and substantively unjustified. According to the Determination “T was bullied then unjustifiably dismissed when all she wanted her employer to do was to address her specific safety concerns about returning to work under her bullying manager.”
The ERA awarded her just less than $100,000; the sum includes $15,000 in distress compensation and reimbursement of around 17 months of lost wages.
For T the case likely would not have been about the money – because the stress and effects on her health and on her family would be far more than money could ever make up for.
But what this case, and the courage of T with the support of CutureSafe NZ to go to the Employment Relations Authority, has shown is that employees in early childhood education do have rights, in particular a right to be provided with a safe workplace.
Concerns arising from this Employment Case
- There is no evidence that the Ministry of Education has looked into the safety of children as witnesses of bullying at the kindergarten. (Note that K continued to employ X in the same position as head teacher of the kindergarten, working unsupervised for the most part)
- There is no evidence that K reported X’s bullying (which it agreed had happened) to the Education Council (now renamed the Teaching Council) so that the Education Council could look into X’s fitness to teach and uphold the standards required of certificated teachers.
- According to Employment NZ, A personal grievance must be raised within 90 days of the date when the problem happened or it came to the employee’s attention. If an employee is dismissed, they have 90 days from the date of the end of the employment to raise their grievance for unjustified dismissal. A concern therefore is that early incidents of bullying may not be considered if before the 90 day deadline but often a person being bullied may not realise or may ‘not want to cause trouble’ by speaking out until a long time after the bullying may have started.
Should you be experiencing bullying or have been bullied seek help and support.
Bullying in the workplace is never okay and especially not in early childhood education which is expected in society to have care as a core value.
Determination of the Employment Relations Authority (amended)
Final non-publication order of names and location
Press Release by CultureSafe NZ