TEACHER Y v EDUCATION COUNCIL OF AOTEAROA NEW ZEALAND [2019] NZCA 637

TEACHER Y v EDUCATION COUNCIL OF AOTEAROA NEW ZEALAND [2019] NZCA 637 [11 December2019]NOTE: SUPPRESSION ORDER MADE BY THE NEW ZEALANDTEACHERS DISCIPLINARY TRIBUNAL PERMANENTLY SUPPRESSINGTHE NAME AND IDENTIFYING PARTICULARS OF STUDENT A, THEAPPELLANT, THE SCHOOL (INCLUDING ITS GEOGRAPHICALLOCATION), AND MR M (INCLUDING THE CIRCUMSTANCES OF HISDEATH) REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA253/2018[2019] NZCA 637BETWEEN TEACHER YAppellantAND EDUCATION COUNCIL OF AOTEAROANEW ZEALANDRespondentHearing: 7 November 2019Court: French, Gilbert and Collins JJCounsel: R M Harrison for AppellantD R La Hood and A R T Garrick for RespondentJudgment: 11 December 2019 at 3 pmJUDGMENT OF THE COURTA We answer the questions of law submitted for determination by this Court:(i) Could the appellant's use of a restorative justice process instead ofa disciplinary investigation in response to the complaint fromStudent A's parents constitute "serious misconduct" under s 139AB ofthe Education Act 1989?Answer: Yes, in all the circumstances of the case.(ii) Was the appellant a decision maker with power to initiate adisciplinary investigation?Answer: No, but the appellant was a decision maker whohad the power to deal with an oral complaint by way ofthe restorative justice process without elevating it tothe board and that was the gravamen of the charge.B The appeal is dismissed.C The appellant is ordered to pay the respondent costs for a standard appealon a band A basis with usual disbursements. We do not certify for secondcounsel.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Teacher Y was the principal of a secondary school. The New Zealand Teachers'Disciplinary Tribunal found her guilty of a charge of serious misconduct relating toher handling of a complaint about an inappropriate relationship between a staffmember and a student.1[2] Teacher Y appealed against the Tribunal's decision to the District Court.Judge AA Sinclair dismissed the appeal.2 Dissatisfied with that outcome, Teacher Ythen sought and obtained leave to appeal to this Court under s 126(7)3 of the EducationAct 1989.41 Complaints Assessment Committee v Teacher Y NZTDT 2016/25, 29 March 2017 [DisciplinaryTribunal Decision].2 Teacher Y v Education Council of Aotearoa New Zealand [2018] NZDC 3141 [District CourtDecision] at [107].3 That section was repealed by s 6 of the Education Amendment Act 2015. However, thisproceeding pre-dates that amendment coming into force and by virtue of the transitional provisionin cl 5 of sch 20 of the Education Act 1989, which was inserted by the amending legislation,s 126(7) continues to apply. Counsel appear to have in our view wrongly assumed otherwise.However, nothing turns on this.4 Teacher Y v Education Council of Aotearoa New Zealand [2018] NZCA 230.[3] Leave was granted in respect of four questions of law. As it has transpired,only two questions were pursued, those questions being:(i) Could Teacher Y's use of a restorative justice process instead ofa disciplinary investigation in response to the complaint fromStudent A's parents constitute "serious misconduct" unders 139AB of the Education Act 1989?(ii) Was Teacher Y a decision maker with power to initiatea disciplinary investigation?[4] As we discussed with counsel at the beginning of the hearing, we wereconcerned that the wording of both questions may not accurately capture the real issuesraised by the case.[5] The first question is based on the premise that the Tribunal's finding of seriousmisconduct only related to the use of a restorative justice process. In fact, althoughuse of a restorative process was one of three particulars of alleged serious misconduct,the Tribunal's ultimate finding was based on the cumulative effect of a series ofdecisions made by Teacher Y including her conduct after the restorative justice processhad taken place. As the Tribunal noted, the essence of the prosecution case, which itupheld, was that the use of a restorative process was part of a series of failures byTeacher Y to promote the wellbeing of the student concerned.5[6] As for the second question, if intended to address whether the principal asdistinct from the school board of trustees had the power under the school's complaintsprocedure to invoke formal disciplinary procedures against the staff member whichmight place his employment in jeopardy, then we consider the answer to the questionmust be "no". But correctly analysed that was not the gravamen of the charge andunfortunately the question as framed has led to unnecessary discussions about thedivision of responsibilities as between board and principal and the dual functions ofprincipals as chief executive officer/adviser to the board and board members.5 Disciplinary Tribunal Decision, above n 1, at [189].[7] In our view, a question about the scope of Teacher Y's powers that does arisefrom the facts and the charges was whether Teacher Y, as decision maker, hadthe power to deal with an oral complaint by way of the restorative justice process,without elevating it to the board.[8] If she did have that power, then the issue becomes whether her exercise of itwas such that she was culpable in a disciplinary sense, an issue which is effectivelysubsumed in the first question.[9] Our analysis therefore proceeds on that basis. In so far as it represents a changeof emphasis from a literal interpretation of the questions in respect of which leave wasgiven, we are satisfied that neither party is prejudiced. Indeed, the parties' writtensubmissions filed before the hearing contained some reformulation of the issues,indicating that counsel also perceived the difficulties.[10] Due to suppression orders,6 we will refer to the student as Student A andthe staff member as Mr M.Background[11] The following narrative is based on the findings of fact made by the Tribunaland upheld by the District Court. Some of the evidence on which the findings werebased was disputed by Teacher Y in those forums but as her counsel Mr Harrisonproperly accepted those findings cannot now be challenged.[12] Mr M was a man in his late forties. He was a popular member of the supportstaff at the school attended by Student A. Mr M was also a close personal friend ofTeacher Y and other members of her senior management team.[13] In 2009, Student A was in a sports team coached by Mr M. She was then aged14. Mr M gave her special attention. He would text her with advice about how toimprove her game on the sports field. The texting escalated. By September 2010 they6 At [240]–[244].were texting each other at night. He told her she was beautiful and she told him sheloved him. On Mr M's instruction, Student A deleted the texts.[14] In December 2010 and again in mid-2011, Teacher Y was made aware ofstudent concerns that Mr M had favourites in the team including Student A and thatthis was causing jealousy. Teacher Y was also made aware that in December 2010,Mr M had sought advice from a senior manager about how to distance himself fromStudent A who he claimed kept sending him unsolicited texts. Mr M spoke toStudent A's parents in December 2010 about her texting.[15] A year later, on Boxing Day 2011, the parents discovered that Mr M hadsecretly given Student A a Christmas present of a heart shaped pendant and had beenexchanging a significant number of intimate text messages with her. The textsdiscovered by the parents had been exchanged on 24 and 25 December and showedMr M to be an active participant. He ended one of his text messages BLU, whichstood for "Beautiful Love You".[16] The parents immediately contacted one of the senior managers at the schoolwho in turn contacted Teacher Y. Teacher Y phoned the school's human resourcesconsultant Mr Taylor. He advised her to meet with the parents and Mr M separatelyto get their respective positions before deciding the next step.[17] Teacher Y then instructed the senior manager to meet with the parents andMr M separately which the senior manager did the following day — 27 December2011. Teacher Y also instructed the senior manager to arrange for both the parents andMr M to attend a meeting together with Teacher Y on 28 December. A joint meetingwas not part of the advice Teacher Y had received from Mr Taylor.[18] The parents were told the joint meeting with Teacher Y and Mr M would be arestorative justice meeting. Teacher Y took minutes at the meeting. The minutes areheaded "First Phase Restorative Justice Meeting". The minutes also record "meetingformat: to allow both parties to examine the situation from both perspectives and seekfirst steps towards resolution appropriate to both parties".[19] Comments attributed to the parents at the meeting included an allegation thatMr M's conduct amounted to grooming. Mr M said he had tried to stop Student Afrom texting him. His intention had been to build her confidence without hurting herbut he saw now that he had gone about it the wrong way. The minutes recordTeacher Y as saying:This is a young girl's fantasy — infatuation. How do we move [Student A]back to being a 16 year old and relationships with other 16 year olds? Have wegone as far as we can today? If so there are some further conditions that mustoccur to ensure everyone's safety [20] The conditions included removing Mr M from sports coaching, an assurancefrom Mr M that there would be no further contact between him and Student A,the provision of external counselling for both parties and for Mr M to be given a newphone and a new number.[21] Teacher Y never informed the parents they could make a formal writtencomplaint to the board either through her or directly to the board under the school'scomplaints procedure. The parents understood their choices were either the restorativejustice process or the police. For the sake of their daughter, they did not want toinvolve the police.[22] Following the meeting, Teacher Y contacted the Chair of the school board oftrustees to update him on the situation. She also spoke again to Mr Taylor. He pointedout there seemed to be a high degree of disagreement as to the extent of thecommunications and Mr M's motivation. He advised Teacher Y that the "allegationsneeded to be independently and thoroughly investigated". He also advised thatbecause of her friendship with Mr M, the investigation needed to be conducted byan external person. He further recommended that she involve the full board.[23] Also, following the meeting, Teacher Y made some inquiries of Telecom butwas (incorrectly) told it would not be possible to retrieve all of the historic textmessaging. She contacted the police but was told by the person she spoke to that itwas not a police matter.[24] There matters rested until the first board meeting of the 2012 year on26 January when the matter was raised in the in-committee section. The minutes ofthe board meeting record:A verbal complaint was received from a parent of which [the board chair] wasmade aware. The identity of staff member involved will remain confidential.Phil Taylor has been engaged for direction and advice and the process willfollow formal channels. The staff member, student and student's parents arenow involved in restorative process including formal counselling. Thisdifficult issue is being handled carefully to protect the employment conditionsof the staff member. An external mediator will be involved if necessary toensure our process is not at risk. This event has highlighted the importance ofclearly defined staff/student boundaries, especially around cyber connectiondangers. Current review of [the school's] policies and procedures is plannedand this area is recognised as highlighted for urgent attention, with view toreview at February 2012 meeting.[Teacher Y] assured the Board this matter does not present any legal issues forBoard attention.[25] Teacher Y did not tell the board that Mr Taylor had recommended an externalinvestigation.[26] In February 2012, Teacher Y instructed a lawyer Mr D to conduct a mediation.She never asked him to undertake an independent investigation of the complaint.Her briefing of him included the statement that Student A was an "obsessive child".She also stated that the school and the parties wanted to explore ways to develop a setof boundaries for future interaction while both Student A and Mr M remained atthe school.[27] According to the evidence of the board chair, Teacher Y subsequently told himthat Mr D had advised her there was insufficient evidence to warrant an independentinvestigation and that Mr D had suggested mediation. Teacher Y also reported toMr Taylor that Mr D had said the best way forward was to get agreement for amediation. In the belief that Mr D had substantively reviewed the evidence beforerecommending mediation, Mr Taylor endorsed mediation.[28] The mediation which included Student A took place at Mr D's office on16 February 2012. The outcome was a confidential memorandum of understanding.The key terms included a provision that neither Student A nor Mr M wouldcommunicate with each other apart from polite exchange of greetings in the event ofa chance encounter. There was also an agreement for external counselling to continue.In fact, Student A only attended one session of counselling and after a brief periodMr M discreetly tried to get Student A's attention whenever they passed at school.[29] In March 2012, there was an incident at school when Student A was bullied byanother student who blamed her for Mr M being removed from coaching the team.Student A's attendance at school and her grades began to slip due to what she describedin evidence as a "terrible" environment.[30] Then in mid-2012 Mr M told Student A that his wife was away for the weekend.Student A obtained his new phone number and he text her with a meeting time at hishouse. He told her that he loved her and he kissed her. Thereafter, they would arrangeclandestine meetings in various locations including school locations.[31] Senior management including Teacher Y were aware of Student A's numerousunexplained absences from class which they attributed to Student A being stillinfatuated with Mr M and trying to seek him out. They did not inform Student A'sparents of these concerns. Their focus was on Mr M and how to keep him safe.They trusted him to avoid Student A and abide by the mediation agreement.Steps were taken to vary his schedule.[32] In November 2012, Teacher Y emailed the board chair to report thatthe "stalking" issue involving Mr M had resurfaced and that the school was takingsteps to ensure Mr M's safety as an employee. The matter was then raised at a boardmeeting attended by Teacher Y. The minutes read:An historic situation involving a student stalking a staff member hasreoccurred. Repeat of inappropriate student behaviour has necessitatedfurther change to the staff member's cell phone contact. Support measureshave been put in place to protect privacy for the staff member. Board membersare asked to report to [board chair] should they become aware of any furtherinstances of harassment.[33] In 2013, Teacher Y was absent for much of the year due to her husband beingseriously ill. He died in October 2013.[34] During Teacher Y's absence, a senior manager met with Student A inAugust 2013 to discuss a complaint that she was spreading lies about Mr M tothe effect that his marriage was unhappy and that he loved her. The senior managertold Student A she was living in a fantasy world. Her parents were called in and shewas sent to a school counsellor who also told her it was all in her head.[35] Later that year, also during Teacher Y's absence, the father reported tothe school that he had seen his daughter and Mr M talking in the street. Mr M said itwas a chance encounter and was given a week's leave. The father contacted the schoolagain when he saw Mr M arrive at a sports field where Student A was playing.No action was taken.[36] 2013 was Student A's last year at school.[37] In 2014, she began tertiary studies. The relationship with Mr M continued andbecame a sexual one.[38] In June 2014, students complained of seeing Mr M and Student A parked ina car outside the school, touching each other intimately. This resulted in a formaldisciplinary investigation and Mr M was given a final warning.[39] He later died suddenly in December 2014.[40] Student A's relationship with Mr M and his death had a significant impact onher. She was diagnosed with post traumatic stress disorder and had to take a year offher studies.[41] Meanwhile in October 2014, for reasons unrelated to this case, a statutorymanager had been appointed to run the school and Teacher Y resigned to take up a newposition at another school.[42] On 6 March 2015, the statutory manager made a mandatory report tothe Teachers Council, expressing concerns about Teacher Y's handling of the parents'complaint. The report stated that the school's response to the complaint had beeninadequate and that, out of concern for a long serving employee, it had failed toprovide the support and steps that would be expected in the area of pastoral care forthe student and her safety. In the view of the statutory manager, Mr M's actionsamounted to grooming and he had taken away Student A's teenage years byencouraging the relationship and having her at his beck and call by playing with heremotions. The statutory manager also alleged the school had several opportunitiesover a number of years to resolve the issues but never did.[43] The report triggered the complaints procedure under the Education Act and ledto the Complaints Assessment Committee charging Teacher Y.[44] The formal notice of charge alleged that during her tenure as principal atthe school, Teacher Y behaved in an unprofessional manner amounting to misconductor serious misconduct in that she:(a) failed to undertake a disciplinary investigation after a complaint atthe end of 2011 that Mr M was engaging in an inappropriaterelationship with Student A;(b) used a restorative justice process to respond to the complaint; and(c) failed to promote the physical, emotional, social, intellectual andspiritual wellbeing of Student A.[45] The charge document further alleged that the conduct described in (a), (b) and(c) above either separately or cumulatively amounted to misconduct and/or seriousmisconduct pursuant to s 139AB of the Education Act and r 9(1)(o) ofthe New Zealand Teachers Council (Making Reports and Complaints) Rules 2004[46] Section 139AB of the Education Act7 defines serious misconduct as beingconduct by a teacher:(a) that—7 Section 139AB has now been repealed and replaced by s 378 of the Education Act. Nothing turnson the change for the purposes of the appeal.(i) adversely affects or is likely to affect the well-being orlearning of 1 or more students; or(ii) reflects adversely on the teacher's fitness to be a teacher; and(b) is of a character or severity that meets the Teachers Council criteriafor reporting serious misconduct.[47] The Teachers Council criteria are found in the New Zealand Teachers Council(Making Reports and Complaints Rules). As mentioned, the rule invoked inthe charge document against Teacher Y was r 9(1)(o). It refers to "any act or omissionthat brings, or is likely to bring, discredit to the profession".[48] After reviewing the evidence, the Tribunal found each of the three particularsof the charge had been proved.8 It then turned to the question of whether Teacher Y'sproven conduct amounted to serious misconduct as defined in the Education Act.Applying the definition, it held that Teacher Y's various failures to meet the duty ofcare she owed to Student A had contributed to the negative effect on the latter'swellbeing.9 It also found that Teacher Y's approach (which the Tribunal characterisedas negligent) to the parents' complaint and the various failings that followed reflectedadversely on her fitness to teach.10 Finally, having regard to the importance of the dutyowed to Student A, the Tribunal said it was satisfied that reasonable members ofthe public informed of the facts and circumstances could reasonably conclude thatthe reputation and good standing of the teaching profession had been lowered byTeacher Y's behaviour.11 And that accordingly her conduct had brought discredit tothe profession.[49] As regards penalties, the Tribunal made formal orders censuring Teacher Y forher serious misconduct, requiring her to undergo a period of 18 months mentoring andrequiring her to provide a copy of its decision to her existing employer.12[50] All these findings were upheld on appeal by way of rehearing tothe District Court.8 Disciplinary Tribunal Decision, above n 1, at [223].9 At [224].10 At [225]11 At [226] applying the test laid down in Collie v Nursing Council of New Zealand [2001] NZAR74 (HC) at [28].12 At [247].Analysis[51] We turn first to the issue of the scope of Teacher Y's authority in her capacityas the school's chief executive.[52] The school had a formal complaints policy in force at the time of the events atthe centre of this case. It provided that "[a] complaint about any aspect of the school'soperations or any behaviour involving a teacher, or a student or students which isreceived by the principal may be resolved without automatic reference to the Board ofTrustees".[53] In addition to the complaints policy, the school also had a written complaintsprocedure. It detailed the process by which the board would deal with "[a] writtencomplaint addressed to the Board of Trustees either independently or on the advice ofthe principal.". As the quoted words make clear, the procedure thus contemplates twoscenarios, the first where the complainant writes directly to the board of their owninitiative and the second where the complainant is advised by the principal to submita written complaint to the board.[54] In our view, the provisions cited at [52] and [53] confirm that whether or notTeacher Y had the power to "institute" or "undertake" a disciplinary investigation,she undoubtedly had a triaging power or function. Having received the oral complaint,she had to decide whether it could be resolved without reference to the board orwhether she should advise the parents to make a written complaint to the board orwhether she should elevate it to the board of her own initiative.[55] The decision she made was to deal with it by the restorative justice processwithout elevating it to the board.[56] We have no doubt she had the power to make that decision.[57] We also have no doubt that it was a power she exercised wrongfully to reacha decision no reasonably competent principal equipped with the information she hadand with a primary obligation for the welfare of her student could have reached.[58] The content of the texts, and the nature of the present Mr M gave Student Ashowed that Mr M's explanation for them at the joint meeting was demonstrably falseand that the parents had very good reasons to regard his conduct as grooming.However, despite the incontrovertible evidence before her, Teacher Y adopteda mindset that it was a schoolgirl's fantasy and that the victim was the staff member.As a result, she on her own initiative embarked on a wholly inappropriate processdesigned to protect Mr M. The mindset was evident in her subsequent briefings tothe mediator and to the board. It was a blind and unreasonable mindset that continuedand tainted her subsequent conduct. It was plainly wrong.[59] Other aggravating aspects of Teacher Y's decision making and her conductwere:(a) She failed to advise the parents of the school's formal complaintsprocedure and indeed effectively misled them about their options.(b) The decision was contrary to the advice she received from Mr Taylor.(c) She failed to provide the board with correct information.[60] All of this was made worse in terms of appearances by the fact of Teacher Y'spersonal friendship with Mr M. We accept that Teacher Y did not consciously takethe decisions she did so as to sweep it all under the carpet and keep a friend out oftrouble. But, to a disinterested observer, the situation certainly has that appearance.[61] Contrary to a submission made by Mr Harrison, we do not accept that the factthe matter was raised at the board's January 2012 meeting absolves Teacher Y.The minutes of the discussion show that Teacher Y was not recommending the boarditself take any action or even seeking their endorsement to a process which by thenwas already underway. There was no formal board resolution. Rather, she was simplyinforming the board and significantly also assuring them there were no legal issues.[62] The board was however misled. The minute gives the impression thatMr Taylor must have approved the restorative justice process. They were not told hisadvice was to conduct an independent investigation. It may well be that the boardchair was remiss in too easily accepting Teacher Y's assurances but that does not inour view mitigate Teacher Y's culpability.[63] In its decision, the Tribunal was also critical of Teacher Y for failing to ensurethe terms of the mediation agreement provided for monitoring of the agreement andsanctions for breaches of its terms.13 We ourselves consider that criticism to beunjustified. It was not for her to take over the drafting process or re-open a concludedagreement. However, we do accept there were other failings in 2012 which weresignificant and which compounded the original error made in 2011.[64] In particular, we consider there were serious breaches of Teacher Y'sobligation to Student A during 2012. Despite knowing that Student A's unexplainedabsences from class and falling grades were likely connected to Mr M, Teacher Yfailed to inform the parents or investigate Mr M's conduct. Instead, she again tooksteps to protect Mr M.[65] We turn now to consider whether this was serious misconduct withinthe meaning of the statutory definition of serious misconduct that applied atthe relevant time.[66] For convenience, we again set out, as it was at the time, the relevant part ofs 139AB of the Education Act:139AB Interpretationserious misconduct means conduct by a teacher—(a) that—(i) adversely affects, or is likely to adversely affect, thewell-being or learning of 1 or more students; or(ii) reflects adversely on the teacher's fitness to bea teacher; and13 Disciplinary Tribunal Decision, above n 1, at [170] and [215].(b) is of a character or severity that meets the Teachers Council'scriteria for reporting serious misconduct[67] As noted by the District Court judge,14 the test is conjunctive. As well ashaving one or both of the adverse professional effects or consequences described ins 139(a), the conduct concerned must be of a character and severity that meetsthe Teachers Council's criteria for reporting serious misconduct. It is the secondcomponent of the definition that was the sole focus of this aspect of the appeal.[68] It will be recalled that the Tribunal relied on r 9(1)(o) — being "any act oromission that brings, or is likely to bring, discredit to the profession". The argumentadvanced by Teacher Y turns on the other criteria listed in r 9(1). It is thereforenecessary to quote r 9(1) in full:9 Criteria for reporting serious misconduct(1) The criterion for reporting serious misconduct is that an employersuspects on reasonable grounds that a teacher has engaged in any ofthe following:(a) the physical abuse of a child or young person (which includesphysical abuse carried out under the direction, or withthe connivance, of the teacher):(b) the sexual abuse of a child or young person (which includessexual abuse carried out under the direction, or withthe connivance, of the teacher):(c) the psychological abuse of a child or young person, whichmay include (but is not limited to) physical abuse of anotherperson, or damage to property, inflicted in front of a child oryoung person, threats of physical or sexual abuse, andharassment:(d) being involved in an inappropriate relationship with anyperson under the age of 16 years:(e) being involved in an inappropriate relationship with a studentwith whom the teacher is, or was when the relationshipcommenced, in contact with as a result of his or her positionas a teacher:(f) the neglect or ill-treatment of any child or young person inthe teacher's care:(g) the neglect or ill-treatment of any animal in the teacher's care:14 District Court Decision, above n 2, at [64].(h) theft, or fraud:(i) involvement in the manufacture, cultivation, supply, dealing,or use of controlled drugs:(j) permitting, or acquiescing in, the manufacture, cultivation,supply, dealing, or use of controlled drugs by any child oryoung person:(k) viewing, accessing, or possessing pornographic materialwhile on school premises or engaged on school business:(l) viewing, accessing, or possessing pornographic material thatdepicts children or young persons or that depicts animalsengaged in sexual acts with humans:(m) breaching the school's standards or rules concerning the useof alcohol at the school or while on school business:(n) any other act or omission that could be the subject ofa prosecution for an offence punishable by imprisonment fora term of 3 months or more:(o) any act or omission that brings, or is likely to bring, discreditto the profession.[69] Mr Harrison argued that the Tribunal and the District Court judge had erred intheir interpretation of r 9(1)(o) because they interpreted the provision in isolation andwithout regard to its context. Developing this submission, Mr Harrison contended thatbecause sub-rule (o) was part of a list, its meaning was necessarily coloured bythe characteristics or qualities that were common to the rest of the list. All the othercriteria involved conduct that was either of a quasi-criminal nature or was misfeasance.Conduct such as Teacher Y's conduct that was only negligence by omission wastherefore outside the scope of sub-rule (o). Mr Harrison emphasised the significantimpact a finding of serious misconduct has on a teacher's career and that accordinglyit was right it should be reserved for cases of deliberate misfeasance.[70] We do not accept those submissions. In our view, the words "any act oromission" must mean what they say and that it would be wrong in terms of the purposeand policy of the provision to read them down. Sub-rule (o) was clearly designed tobe a catch-all provision in recognition of the fact that it was impossible to categoriseor capture by specific wording all forms of serious misconduct. The sub-rule isnecessarily and deliberately broader than what goes before and of course expresslyincludes the word "omission".[71] This is certainly the interpretation that has been consistently taken bythe Tribunal over many years.15 It has applied r 9(1)(o) to a wide range of factualsituations, including bullying, distributing private information of students andexpression of racist views in the course of teaching.[72] In coming to this conclusion, we have not overlooked a further argumentadvanced by Mr Harrison based on the High Court decision of Cole v ProfessionalConduct Committee of the Nursing Council of New Zealand.16 In Cole, Gendall J heldthat, under the disciplinary regime for health practitioners, it was not enough forthe relevant disciplinary tribunal to find the proven facts showed that a practitioner'sconduct amounts to malpractice or negligence or brings discredit to the profession.The Tribunal was required to go on to consider the threshold question of whether thatconduct was significant enough to warrant a disciplinary sanction for professionalmisconduct.17[73] As we understand the argument, it is suggested the approach in Cole shouldinform the interpretation of r 9(1)(o) of the Teachers Council Rules by importinga "serious misfeasance" requirement into the rule, or the creation of an additional step.[74] In our view, neither of those suggestions is warranted. To adopt them wouldbe to place an unjustified gloss on the clear and unequivocal wording of s 139AB.The approach adopted in Cole (if correct, which counsel disputed) was in relation toa different statutory regime and is properly limited to that regime.Outcome[75] For the reasons traversed above, we answer the two questions of law submittedfor determination by this Court as follows:(a) Could the appellant's use of a restorative justice process instead ofa disciplinary investigation in response to the complaint from Student15 See for example, Complaints Assessment Committee v Teacher NZTDT 2014/18, 5 June 2014 at12.16 Cole v Professional Conduct Committee of the Nursing Council of New Zealand [2017] NZHC1178.17 At [37].A's parents constitute "serious misconduct" under s 139AB of theEducation Act 1989?Answer: Yes, in all the circumstances of the case.(b) Was the appellant a decision maker with power to initiate a disciplinaryinvestigation?Answer: No, but the appellant was a decision maker with powerto deal with an oral complaint by way of the restorative justiceprocess without elevating it to the board and that wasthe gravamen of the charge.[76] It follows from our answers that the appeal must be dismissed.[77] As regards costs, Mr Harrison asked that should the appeal fail, then no awardof costs be made because of Teacher Y's personal financial circumstances. We are notunsympathetic to that request. However, it is outweighed by the usual rule that costsshould follow the event and the special place of disciplinary bodies such asthe respondent under the costs regime.18 Correctly analysed this was not a test case.[78] We therefore order the appellant to pay costs to the respondent for a standardappeal on a band A basis with usual disbursements. Mr La Hood said he was "relaxed"about whether or not we certify for second counsel. We do not so certify.Solicitors:Harrison Stone, Auckland for AppellantLuke Cunningham & Clere, Wellington for Respondent18 Roberts v Professional Conduct Committee of Nursing Council of New Zealand [2014] NZCA141, (2014) 21 PRNZ 753 at [29].