Defending itself again in the Labour Tribunal, a presiding judge strongly suggested that CDNIS breached the terms of an employment contract when invoking a summary dismissal of a Vice-Principal.
The Canadian International School of Hong Kong (CDNIS) appeared in the Labour Tribunal yesterday to provide a weak defense against a complaint of improper summary dismissal made by Kathy Nutting, the former vice-principal who was fired without notice immediately after she sent a controversial email to parents on March 10.
The hearing was presided over by judge Kenneth Chan (陳炳宙), who urged all attendees “not to be happy or distressed” by his words due to the possibility of judges in higher courts holding different opinions, but stated that he would speak as frankly as he could because the hearing was not, technically speaking, a trial. He said he was not considering whether there were grounds for summary dismissal, as the “burden of proof” for such justification lay with the School, represented by Director of Business Administration Eunice C. Y. Tan (陳泇沇). Instead, the judge questioned Tan over who was responsible for the decision to summarily dismiss Kathy Nutting. Tan asserted that since it was an “operational matter”, the Head of School, Gregg Maloberti, had authority to fire her and did so by email on March 10, after seeking advice from lawyers.
“Summary dismissal had to be a decision of the Board of Governors.” It wasn’t in this case.
However, the judge immediately went to the heart of the matter and noted the a clause in the School’s employment contract, which states that suspension and summary dismissal had to be a decision of the Board of Governors, after which the Board may withdraw her suspension or dismiss her within 21 days. Furthermore, the following clause specifies that the School must notify the reasons of summary dismissal to Mrs Nutting. The contract also stipulates a right to a hearing of the Board or a committee designated by the Board, none of which occurred. Upon questioning from the judge, Tan admitted that “less than five” Board members were consulted prior to the decision to dismiss Nutting and there was “no official Board meeting”. The judge thus concluded that the School had violated its own employment contract by breaching its clauses.
At both the beginning and end of the hearing, the judge strongly recommended both parties to reach settlement outside of court, as his opinion could be challenged at multiple higher courts, incurring “astronomical costs” for both parties. “Your time should be spent in education, not in court,” said the judge.
However, the school seems to be very comfortable with spending on lawyers given its extraordinarily large cash holdings. The school-controlling Members group includes two partners at King & Wood Mallesons, a recipient of the school’s dramatically rising legal expenditure.
While Nutting agreed to find settlement with the School immediately after the hearing, Tan requested more time for the School to re-examine the case with its lawyers. When the judge gave the School two weeks time, Tan requested an additional week, claiming that the second week would be a “short week” for the School and needed more time, “just in case we need to call a few meetings.” Ms Nutting agreed to the extended timeline and the somewhat perturbed judge resigned to giving the School three weeks, adjourning the meeting until October 5.