Order against Whangārei Boys’ High School learning support assistant breached her right to justice

Kirsty Hilford has successfully challenged an Employment Relations Authority ruling that ordered her to destroy documents that were critical to her personal grievance claim against Whangārei Boys' High School. Photo / Tania Whyte

An order that a learning support assistant at Whangārei Boys’ High School destroy documents that were critical to the personal grievance claim against her employer breached her right to justice, the Employment Court has ruled.

Kirsty Hilford had her unjustified disadvantage personal grievance claim against the school declined by the Employment Relations Authority (ERA) member Alistair Dumbleton in August last year.

He ruled Hilford did not raise within 90 days an unjustified disadvantage personal grievance with the school’s board of trustees.

The ERA ruled she did not raise her unjustified disadvantage personal grievance with the school within 90 days, but the Employment Court ruled she had. Dumbleton made the order for the destruction of the documents at the June 2022 investigation meeting in Whangārei.

She filed an application in the Employment Court court to challenge the ERA’s order in June last year that she destroy three particular documents which described the health and personal circumstances of certain students. The issue was raised by the school’s lawyer Richard Harrison towards the end of the ERA investigation meeting in June.

Dumbleton issued an order for their destruction, to be complied with immediately. Dumbleton said he was satisfied the confidentiality interests of the students was paramount and the directions were necessary to protect the information and to prevent any inadvertent breaches of security and privacy.

He said the ERA would retain possession and control of the documents and Hilford would be permitted to inspect them upon application, subject to such conditions as may be imposed for security reasons.

When the ERA sent an email to Hilford’s legal advocate Allan Halse with a request for him to advise whether the order had been complied with and if not, to provide an explanation.

Halse replied the same day and stated the destruction order was an attempt to derail Hilford’s personal grievance against the school.

He said Hilford had no intention of using the documents for any purpose other than to deal with a relevant issue, namely whether she should have been placed on a higher grade as a learning support assistant at the school, given the complexity of the needs of students she had been dealing with.

She was willing to redact the names and identifying details of the students identified in the documents. The ERA issued a compliance order and Hilford was required to comply with the destruction order before July 8, 2022. Upon receiving the compliance order, she instructed him to raise a challenge with the Employment Court.

Halse filed a memorandum in December 2022, confirming Hilford had destroyed the documents.

Difficulties arose as the documents were needed as part of her challenge to the order for their destruction. In his ruling, Employment Court judge Bruce Corkill said the importance of maintaining the confidentiality of students’ names and private information needed to be balanced against the parties’ natural justice rights which entitled them to a fair hearing.

The mechanism proposed by the ERA, he said, did not achieve that balance.

“I consider that the effects of the orders made were substantive rather than merely procedural. They had the potential to impact significantly on Mrs Hilford’s ability to present her case,” Judge Corkill said.