Principal's decision

22. Only the principal may make the decision to stand down or suspend.

Note: ‘Principal’ also includes someone who is formally delegated by the board to act as the principal in your absence. Such a delegation can only take effect where the principal is absent for example, on sick leave, or there is a vacancy for the principal’s position. This delegation should be in writing.

23. You must ask these questions about the facts from the investigation:
    1. Did the student’s behaviour constitute gross misconduct, continual disobedience or behaviour risking serious harm? and
    2. If the incident was gross misconduct or continual disobedience, did it set a harmful or dangerous example to other students at school? and
    3. What part did the student’s individual circumstances play? and
    4. What action is appropriate in these circumstances?
24. These questions will help you to understand your legal options and duties in Section 80 of the Education and Training Act 2020.
25. If the incident does not fit into 1 of the 3 categories (gross misconduct, continual disobedience or behaviour risking serious harm) then you may not stand-down or suspend.

Section 80 Education and Training Act 2020

Principal may stand-down or suspend students

1. The principal of a state school may stand-down or suspend a student if satisfied on reasonable grounds that:
   1. The student’s gross misconduct or continual disobedience is a harmful or dangerous example to other students at the school or
   2. Because of the student’s behaviour, it is likely that the student, or other students at the school, will be seriously harmed if the student is not stood down or suspended.

Was the student's behaviour gross misconduct?

26. You should ask: Is any misconduct:
    1. significantly blameworthy and remarkable? and
    2. serious enough to justify removing the student from school, even though it might damage the student’s education?
27. Gross misconduct is never trivial. There is a high threshold. Whether an incident is 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.
28. 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 for that behaviour to go unpunished?

Guidance from the Courts

The High Court has said that “gross misconduct” means misconduct that is “striking and reprehensible to a high degree”. (M & Anor v S & Board of Palmerston North Boys’ High School [2003] NZAR 705, 712 (decided 5 December 1990).)

Is there continual disobedience?

29. You should ask: Is there a pattern of entrenched misbehaviour? (J suing by his litigation guardian v Bovaird; Anor [2007] NZAR 660, 669 (decided 7 June 2007).)
30. 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 for that behaviour to go unpunished?

Is there behaviour risking serious harm to the student and other students if the student is not stood down or suspended?

31. You should ask: Because of the student’s behaviour, it is likely that the student, or other students at the school, will likely be seriously harmed if the student is not stood down or suspended?
32. This category is about the 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.
33. 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 suspend or stand-down using this ground.

What part have the student's individual circumstances played?

34. You must consider also 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:
    1. does anything change my perception about the seriousness of the incident or the part the student played?
    2. 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?
    3. are there any strengths or good factors to note about the student?

Refer to Part 2, Section 2: 9 Learning support needs

Learning support needs

34. 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.

36. Finally, you must weigh up all of the factors and decide on a course of action. Ask: What would be the right remedy in the circumstances?

37. Consider that:
    1. 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
    2. the student should already have received appropriate guidance and counselling or other pastoral support if problems were known to the school (Section 103(a) Education and Training Act 2020). A parent should already have been informed of matters affecting the student’s relationships or progress (Section 103(b) Education and Training Act 2020). Stand-downs and suspensions remain a last resort
    3. you must consider the student’s individual circumstances as well as the facts of the particular incident. Both are important.

Guidance from the Courts

“There may be cases where the severe consequences for a child of suspension..., and removal or potential removal, would be disproportionate... There might well be need for flexibility to cater for children with special individual problems, whether psychological or material. A child suddenly violent at school towards a teacher might simply be repeating violence at home, not his fault, and not be capable of control. A child who behaves destructively or irrationally might be calling for help and deserve help rather than punishment. A child who steals might be from a disadvantaged background and be hungry or lack essential clothing items. The list could be prolonged. There is a statutory discretion conferred upon principals not to suspend, despite gross misconduct and harmful or dangerous example, most obviously exercisable where there are special circumstances, or a need for mercy and compassion.” (M and R v S and Board of Palmerston North Boys’ High School 2003 NZAR 705, 718 (decided 5 December 1990).)

Document your decision

38. If you decided to stand-down or suspend, your decision and the reasons for it should be accurately recorded in writing. Your records need to be complete. There should be enough information in the report to show that you turned your mind to the criteria you had to apply. Document why you made the decision and how you arrived at the decision.

Refer to Part 2, Section 3: 11 Documenting processes

Documenting processes

Record what your decision is and why

1. If you're stood down, written reasons will help you explain the stand-down at a stand-down meeting. Refer to Stand-down meeting, paragraph 52.

   During a stand-down

2. If you're suspended, it will help you prepare the principal’s report. Refer to Report for board, paragraphs 67 to 68.

   During a suspension

3. In both cases, good documentation will help show that you followed a fair process and lower the risk of challenge.

Refer to Part 2, Section 3: 11 Documenting processes

Documenting processes

Flowchart 1: Principal considers possible stand-down or suspension

At all times, the principles of natural justice apply – act fairly and reasonably in the circumstances.