APPEAL ALLOWED

Otago Daily Times, Issue 24631, 12 June 1941, Page 11

APPEAL ALLOWED

DISMISSED TEACHER REFUSAL TO SALUTE FUG COURT’S MAJORITY DECISION (Special.) AUCKLAND. June 11. The appeal of Miss Louisa Grace Kennedy, a teacher employed by the Auckland Education Board at Waikimo, against her dismissal, has been allowed by a majority of the Teachers’ Court of Appeal, which sat at Waihi on May 5. The reserved judgments of the three members of the court, Mr W, H. Freeman, S.M., Hamilton; Mr H. L. Boughton, Waihi, associate for the appellant, and Mr W. W. Hill, Auckland, associate ’for the Education Board, have now been given. Mr Hill dissented from ■ the views of Messrs Freeman and Boughton. Giving his judgment, Mr Freeman ■ said the board dismissed the appellant i for her persistent refusal to salute the flag when ordered to do so. Loyalty Affirmed

Mr Freeman said that, while it could not be disputed that persistent refusal to obey a lawful order might amount to gross misbehaviour, he did not think it necessarily did so. . “ Gross ” meant “flagrant, glaring, or monstrous.” To refuse to salute the flag, if actuated by motives of disloyalty and accompanied by expressions or gestures expressive of disloyalty or contempt, would undoubtedly amopnt to gross misbehaviour. In the present case, however, the evidence showed that the appellant was courteous but firm in her refusal. She- affirmed her loyalty and offered to stand- to respectful attention, which was in itself an attitude showing respect and loyalty. It was evident that she possessed deep religious convictions.

Mr Freeman said that, considering all the circumstances, it .would be straining the language of the Statute to bold that her acts amounted to gross misbehaviour. The fact of the words “ gross misbehaviour ” being coupled with “immoral, conduct-’’and the drastic powers given to the board indicated that something of a glaring, flagrant or monstrous character was intended before action should be taken. . Course Open to Board

Mr Freeman said he did not propose making any order under section 153, which empowered the board to reinstate, transfer,’ or reduce the appellant .in status..,; He preferred to leave the 'matter open, so that either side might take whatever action it cared to follow. He agreed that everything should be done, particularly at the present time, to inculcate. loyalty and love of Empire in children. If the board considered that the appellant was not a fit and proper person to teach children, then it. could invoke other machinery in the Act for terminating her services. An appeal against action under section 17 gave a magistrate wider scope, -and gave him the right to take into account the public welfare.

In Mr Freeman’s opinion, the appeal should be allowed. Each side was ordered to pay its own costs. Mr Boughton held that the by-law ’under which the board directed teachers on what should be taught on particular days infringed on the curriculum and was ultra vires. In Mr Boughton’s view the appellant’s conduct did not amount to gross misbehaviour on the ground that she persistently refused to carry out a by-law which the board had no power to make. The Education Department’s regulations made no specific reference to saluting the flag. In other respects, Mr Boughton con-curred-in Mr Freeman’s views, and held that there was no gross misbehaviour in appellant’s conduct. He was also of the opinion that each party should pay ijjs own costs. Dissenting Decision ■ In his dissenting judgment, Mr Hill held that, by her persistent refusal to obey the orders of the headmaster of the Waikino School to salute the flag, Miss Kennedy was guilty of gross misbehaviour, and that the board was justified in summarily dismissing her. In Mr Hill’s opinion, the board would have failed in its duty had it adopted any less drastic action. The headmaster relied on no by-law for his authority in giving his orders, but derived it from the department’s regulations regarding the organisation and management of schools. Mr Hill maintained that Miss Kennedy was a member of a subversive organisation, the members o$ which spread a doctrine which included not saluting the flag. Cohcluding, Mr Hill said the board wisely took advantage of the opportunity offered by Mis* Kennedy’s conduct of ridding the service of a teacher who. while continuing to believe in the tenents of Jehovah’s Witnesses, could not be 100 per cent, loyal, and might do an incalculable amount of harm.