Was the student’s behaviour gross misconduct?#

You should ask, is any misconduct:

• significantly blameworthy and remarkable?
• serious enough to justify removing the student from school, even though it might damage the student’s education?

Whether an incident constitutes gross misconduct will always depend on the particular situation. You must weigh up all the factors. A decision may never be predetermined by school policies or breaking a school rule. The courts have established that you cannot automatically label a particular action or behaviour as gross misconduct.

You must also be satisfied that the gross misconduct is a harmful or dangerous example to other students at your school.

You should ask: If other students were to know about it, would it undermine discipline and safety standards if that behaviour were not addressed appropriately?

...or, is there continual disobedience?#

You should ask:

• Is there a pattern of entrenched misbehaviour? *

You must be satisfied that the continual disobedience is a harmful or dangerous example to other students at your school. You may ask yourself: If other students were to know about it, would it undermine discipline and safety standards if that behaviour were not addressed appropriately?

* J suing by his litigation guardian v Bovaird & Anor [2007] NZAR 660, 669 (decided 7 June 2007).

...or, is there behaviour risking serious harm to the student or other students if the student is not stood down or suspended?#

You should ask:

• Because of the student’s behaviour, is it likely that the student, or other students at the school, will likely be seriously harmed if the student is not stood down or suspended?

This category is about risk of serious harm, that is distress or injury, to the student or other students. It is only concerned with student safety, in contrast with the more discipline orientated categories of gross misconduct and continual disobedience.

You can only use this category where a stand down or suspension is the only valid response to a safety concern. This ground is truly a last resort. If you can manage the safety concern in other ways you may not stand down or suspend using this ground.

What part have the student’s individual circumstances played?#

You must consider the student’s individual circumstances and the context of the incident. This does not have to be exhaustive: the Act requires prompt action. If you only have limited information within your school, you might choose to consult a parent.

You may ask yourself:

• Does anything change my perception about the seriousness of the incident or the part the student played?
• Are there any pastoral concerns or mitigating factors? Is the behaviour out of character? If so, can you identify why and does this change your view of the situation?
• Does the student have specific learning challenges or disabilities to consider? What are the student’s strengths?

Whether the student has been in trouble or been stood down or suspended in the past is only one factor for you to weigh up. It cannot pre-determine what you decide to do.

What action is appropriate?#

Finally, you must weigh up all of the factors and decide on a course of action.

You should ask:

• What would be the right response in the circumstances?

Consider that:

• the consequences are serious. Both stand down and suspension interrupt the student’s right to attend school. Suspended students might have their suspension extended by the board, or even be excluded or expelled
• the student should already have received appropriate guidance and counselling or other pastoral support if issues were known to the school*. A parent should already have been informed of matters affecting the student’s relationships or progress**. Stand downs and suspensions remain a last resort
• you must consider the student’s individual circumstances as well as the facts of the particular incident. Both are important.

* Section 103(a) Education and Training Act 2020.
** Section 103(c) Education and Training Act 2020.

Education and Training Act 2020: Section 103 – New Zealand Legislation