Refund request following dismissal from course due to bad behaviour

Introduction

1. I must consider a contractual dispute between Ms (Redacted) and (Redacted).  Ms (Redacted) considered that (Redacted) has breached the contract, causing her a loss, for which compensation is sought.
2. As will be discussed further below, during Ms (Redacted)’s enrolment with (Redacted), a number of problems arose.  There are differing views between Ms (Redacted) and (Redacted) as to who is responsible for these problems, but ultimately (Redacted) dismissed Ms (Redacted) from the course, effectively terminating enrolment and trespassed her from its campus.  Ms (Redacted) has claimed for losses consequent to that termination.
3. Ms (Redacted) raised a complaint with the International Student Contract Dispute Resolution Scheme on 16 October 2019.
4. The basis of Ms (Redacted)’s complaint was:

• Ms (Redacted) was misled by both the immigration adviser and (Redacted).
• (Redacted) did not adequately address Ms (Redacted)’s complaints about her homestay placement.
• The programme was not delivered appropriately.
• The programme was not fit for Ms (Redacted)’s stated purpose and at the correct level for her abilities.
• (Redacted) failed to treat Ms (Redacted) in a fair and equitable manner.
• (Redacted) failed to act in a fair and equitable manner through its disciplinary process.
• Ms (Redacted) suffered a financial loss when (Redacted) dismissed her from the course.

5. iStudent complaints applies the International Student Contract Dispute Resolution Scheme Rules 2016 (the Rules).  The Rules state that the Scheme only considers disputes between a student and provider that are “contractual or financial”.[1]  The focus in this case must be on where there is a contractual breach. 
6. Ms (Redacted) and (Redacted)  were unable to resolve this issue at mediation and the matter has now been referred to adjudication.

Background

7. On 8 July 2019 Ms (Redacted) completed an application form to study at the (Redacted).  Ms (Redacted) is a Chinese citizen and travelled to New Zealand to undertake studies at (Redacted). She is also known as (Redacted).
8. Ms (Redacted) signed the application form agreeing that she would “observe the regulations and rules of conduct while studying at (Redacted)”.  Further she confirmed that she understood that her “tuition may be terminated if I do not abide by the Rules and Regulations”.
9. The “behaviour rules” of the (Redacted)  as contained within the rules and regulations including the student handbook.  The most relevant rules in relation to this matter are as follows:

You must treat institute students, staff and homestay family members with respect

You must not use bad or offensive language at any time.

10. In addition to the behaviour rules, Ms (Redacted) was provided with the “code of conduct”.  In part the code outlined the following:

You must respect classmates, teachers and members of your homestay

Be kind to your classmates, teachers and homestay

11. Ms (Redacted) was also made aware of the consequences of breaching (Redacted)’s rules and regulations and was advised of the disciplinary process.
12. For completeness, (Redacted)’s disciplinary process comprises of the following:

Formal Disciplinary Action

Formal disciplinary action for dealing with serious misconduct shall be in accordance with the following procedure:

Student Misconduct

Step 1: Verbal warning

Issued in cases of misconduct.  The warning will remain on your personal record.

Step 2: Written warning

Issued in case of misconduct where you have previously received a verbal warning.  This written warning will remain on your personal record and will be the final warning.

Step 3: dismissal

Dismissal from the Institute and Homestay may follow instances of misconduct where you have already received a final written warning.

13. On 27 July 2019 Ms (Redacted) completed a homestay application form.  (Redacted)  provided a homestay placement for Ms (Redacted) and she commenced staying at the placement from 23 August 2019. It seems that the homestay application form did not specifically detail behavioural obligations for Ms (Redacted).  However, the behaviour rules outlined above clearly mention that Ms (Redacted) was to treat the homestay family with respect.
14. On 22 August 2019 (Redacted) sent an email to Ms (Redacted) welcoming her to (Redacted).  The email provided further course information and outlined what would occur on the first day of the course.  In addition, the email provided various links to other information including the student handbook.
15. On 26 August 2019 Ms (Redacted) completed an enrolment form.  By signing the enrolment form Ms (Redacted) acknowledged that she had “read, understand and agree” to the conditions outlined in the form.  It was noted:

I have read and understood (Redacted)’s Withdrawal and Refund Policy.

I agree to observe (Redacted)’s rules and regulations of conduct while studying at (Redacted).  I understand that my enrolment may be terminated if I do not adhere to the rules and regulations.

16. Ms (Redacted) enrolled in the New Zealand Certificate English Language (Level 5) with (Redacted).  The programme was offered over 17 weeks from 26 August 2019 to 20 December 2019. The tuition fees were $6550.00 and there were additional fees as follows:

• $120.00 airport pickup
• $120.00 resource fee
• $180 enrolment fee
• $200.00 homestay placement fee and $960.00 for four weeks accommodation

17. On 2 September 2019 an incident record was completed in relation to Ms (Redacted)’s behaviour.  It stated:

… The homestay was preparing her a new room for her but instead of waiting for it to be ready and listening to the homestay she pushed her way in and refused to wait.  Also, the homestay had her grandchildren over on Sunday for Father’s Day, the children were being loud when playing so Ms (Redacted) went out to the children and yelled at them instead of talking to the host family.  They found this very rude and out of line.

18. On 5 September 2019 a further incident record was completed in relation to Ms (Redacted).  It stated:

The homestay called me saying that (Redacted) is not respecting her room at the homestay as well as the bathroom.  (Redacted) is leaving half eaten food in her room and rubbish everywhere.  She is also leaving water on the floor in the bathroom and refusing to clean it up when asked by the homestay.

19. On 5 September 2019 Ms (Redacted) had a meeting with (Redacted)’s officer manager (Redacted)  to discuss the above incident record.  An incident record was completed due to Ms (Redacted)’s behaviour at the meeting.  It stated:

Student requested a meeting with Office Manager. Met her at 3pm.  Student presented several topics but didn’t accept any explanation/offer of help from me. She was rude, raised her voice several times and was insulting.

I tried to leave the meeting room and she cornered me and shut the door.  I opened it again and left towards my office.  She cornered me again and when I got to the ‘staff only area’, she pushed me and the door, entered and refused to leave.  She continued yelling at me.

20. On 5 September 2019 Ms (Redacted) completed a “cancelling of homestay request form”.  (Redacted) approved the cancellation.
21. On 6 September 2019 Ms (Redacted) and (Redacted)  homestay coordinator (Redacted)  completed a “verbal warning letter” in relation to Ms (Redacted)’s behaviour.  The letter stated:

This is records of the verbal warning given regarding your unacceptable behavior [behaviour] at the (Redacted).  You [Your] behavior [behaviour] towards teacher, (Redacted) staff and your homestay is unacceptable and a violation of our Student Behavior [Behaviour] Rules.

This verbal warning will remain on your personal record.  If there are no improvements in your behavior [behaviour], you will receive a final written warning.  If there are still further incidents of this type, you will be asked to leave (Redacted) and Immigration New Zealand will be informed that you are no longer a student at our school.

22. Around 9 September 2019 Ms (Redacted) left the homestay placement and resided with a friend.
23. On 9 September 2019 Ms (Redacted) attend the (Redacted) Central Police Station to make a complaint.  She was advised by police that it was “not a police issue”. Ms (Redacted) then left the police station and “called 111 making accusations that she was spat at by front counter staff”.[2]
24. On 9 September, a further complaint was received by (Redacted) from the homestay.  The complaint stated:

Over the weekend (Redacted) has been very rude to her homestay on Saturday she was walking all over the house screaming at someone on the phone.  She would demand her homestay to cook her a different dinner and when they did she would purposely stand in the way so the homestay had to chuck her fork in the sink which then Ms (Redacted) accused her of throwing it at her.  The family also had the grandchildren over, and when they were playing and getting loud, she went and stood in the middle of them and started singing.

25. On 9 September 2019 Ms (Redacted)  and Ms (Redacted) completed a “written warning letter” addressed to Ms (Redacted).  It stated:

Your behavior [behaviour] towards your homestay family during the weekend was unacceptable and a violation of our Student Behavior [behaviour] Rules.

… You were warned about your behavior [behaviour] previously and you have received a verbal warning.  This written warning will remain on your personal record and will be the final working that you will receive.

If there are further incidents of this type, you will be asked to leave (Redacted)  …

26. On 24 October 2019, a further incident record was completed by (Redacted) marketing consultant (Redacted).  It stated:

After my appointment I saw the message she [Ms (Redacted)] sent on WeChat saying I was bullying her, humiliating her and abusing her.  She also threatened me that she will write a complaint on every Chinese forum and website so I can’t do my recruiting job properly.  She said even though the managers talk to her, she is really angry that I didn’t meet her and have an appointment with her.  She stated that she will always find chances to beat me.

27. About 28 October 2019 a further incident report was completed.  The details of the report outlined that a student Ms (Redacted) complained of behaviour by Ms (Redacted) between the 25 and 28 October 2019.  Ms (Redacted) completed the report.  She stated:

I have had a call everyday from (Redacted)  the past weekend due to an incident with another student (Redacted).  The first phone call phone call was (Redacted), really upset saying that (Redacted) is threatening her and calling her names.  

28. On 29 October 2019 Ms (Redacted)  then met with Ms (Redacted) and recorded the following:

I met (Redacted) on 29/10/19 at 12pm.  She mentioned she felt scared and in danger during the weekend, due to (Redacted) contacting her several times on the phone and sending her messages.  Those message contained insults and threats, as ‘I’ll beat you’, ‘I’ll kill you’, ‘I’ll find your weakness and go after you’.

29. On 12 November 2019 Ms (Redacted) and (Redacted) director of studies Ms (Redacted)  completed a “dismissal letter” effectively terminating Ms (Redacted)’s enrolment.  It stated:

This is a formal letter to inform you that you are dismissed from (Redacted), due to ongoing misconduct in violation of your behavior [behaviour] rules, effective immediately.

The school believes that the number of infringements that you have made against our behavioral [behavioural] rules warrants a termination of enrolment.

You have:

• been repeatedly disrespectful towards your classmates, teachers (REDACTED) staff members, (Redacted) homestay family, and your agent.
• used physical violence against homestay members and (Redacted) staff
• made threats towards teach, classmate, and marketing consultant
• harassed classmates, (Redacted) staff and agent
• trespassed on school and homestay property
• raised false accusations against homestay and (Redacted) staff to NZ police
• use bad, offensive language towards agent, homestay, (Redacted) staff and your classmates
• been disruptive during class time

30. On 12 November 2019 police constable (Redacted) served Ms (Redacted) with a trespass notice, trespassing her from (Redacted)’s campus.
31. On 13 November 2019 (Redacted)  staff received a further complaint from Ms (Redacted)’s classmates.  An incident record was completed which in part recorded that Ms (Redacted) had “received threats from (Redacted)” and “she said (Redacted) is a very extreme person, saying extreme things and she sounds crazy.”
32. On 15 November 2019 Ms (Redacted) attended the (Redacted)’s campus.  Police were called, however when they arrived Ms (Redacted) had left.  Approximately three hours later Ms (Redacted) returned to the premises and police were once again called.  Police located Ms (Redacted) in the reception area and after a brief discussion she was given a verbal warning for trespassing.[3]

New Zealand Qualification Authority (NZQA) Investigation

33. On 30 January 2020 NZQA received a complaint from Ms (Redacted) regarding the (Redacted).  An investigation by NZQA was carried out.
34. On 11 March 2020 NZQA Senior Risk Advisor (Redacted) wrote to (Redacted) advising it of the outcome of the complaint investigation.  He stated:

NZQA finds the programme that the complainant was placed on – namely the NZCEL (Level 5) was fit for her stated purpose and at the correct level for her abilities …

NZQA finds no breach of Clause 16 of the Education (Pastoral Care of International Students) code of Practice 2016.

35. NZQA investigated Ms (Redacted)’s complaint that the programme was not delivered appropriately. NZQA concluded that:

NZQA has granted and accreditation to (Redacted)  to deliver the NZCEL (Level 5) in its current format.

There is no evidence to confirm lack of ability of the teachers or effectiveness of the teaching of NZCEL (Level 5).

36. NZQA investigated Ms (Redacted)’s complaint that (Redacted) “failed to treat her complaints relating to the level of the course and its delivery appropriately and in a fair and equitable manner”.  NZQA concluded:

There is no evidence that (Redacted) failed to treat this part of the complaint in a fair and equitable manner.  In fact, there is ample paperwork and a paper trail to suggest that much energy and staff time was used to address the matter.

37. NZQA also investigated Ms (Redacted)’s complaint that (Redacted) “did not deal with her complaints about her homestay placement adequately and in a fair and equitable manner”. In relation to this part of the complaint NZQA found that:

There is no evidence that (Redacted) failed to take appropriate action relating to the issues brought to them by the complainant regarding the homestay experience.

38. NZQA also investigated Ms (Redacted)’s complaint that “(Redacted)  did not act in a fair and equitable manner through its disciplinary processes with particular reference to warnings and dismissal as set out in its Student Handbook”.  NZQA found that:

… the processes detailed in the Student Handbook were clear, fair and followed.  There was ample paperwork to show that breaches of behavioural expectations by the complaint that led to each step in the disciplinary process and the eventual termination of enrolment.

39. The final complaint that Ms (Redacted) raised was that (Redacted) did not use an appropriate agent – (Redacted) – when organising her enrolment”.  However, after an investigation NZQA found that there was no breach of Clause 13 of the Education (Pastoral Care of International Students) Code of Practice 2016.

Ms (Redacted)’s Position

40. Ms (Redacted) provided extensive documentation, including statements from other students.  I have summarised Ms (Redacted)’s position as follows:

• Ms (Redacted) believes that she has not been treated fairly by (Redacted).  She stated:

I had to leave my homestay as it had rodents and insects.  I was bitten by a mouse in my room and did not feel safe.  I had to leave.

My stay began on 23/8/19 the day I was forced to leave by the school on 7/9/19 but I had paid for a month stay.

I tried to talk to the school about this.  They did not listen and they did not give me back the money for my accommodation.

What I would like is for my balance of accommodation to be paid back to me.

Also I would like the school to apologise to me for the way I have been treated.  I am very upset and it has caused me a lot of stress.

• • Ms (Redacted) believed that (Redacted) has breached the terms of the agreement by not ensuring that the quality of the course and the tuition provided was of sufficient quality. 
  • Further Ms (Redacted) believed that (Redacted)) did not adequately address the issues that she raised with the homestay accommodation.
  • Ms (Redacted) believed that due to (Redacted)’s failings she was unable to complete the course and was required to study at an alternative institution. As a result, Ms (Redacted) incurred additional expenses in order to remain in New Zealand to complete her studies.
  • As such Ms (Redacted) is requesting a full refund of the course fees. 

(Redacted)’s Position

41. (Redacted) disagrees with Ms (Redacted)’s position. (Redacted)’s position is that it did not breach the agreement and relied on the outcome of the NZQA investigation.  It submitted:

… we believe that (Redacted) has been treated in a fair and equitable manner.  In fact, we believe our staff have gone to quite extraordinary lengths to assist the student.

42. (Redacted) submitted that Ms (Redacted)’s behaviour was a breach if its behavioural rules and despite (Redacted)’s attempts to address this behaviour it continued to receive incident reports and ultimately had no choice but to dismiss Ms (Redacted) from the course. 
43. As such, (Redacted) submitted that Ms (Redacted) was not entitled to a refund of the course fees.

Discussion

44. I must decide whether that has been a breach of the contract between Ms (Redacted) and (Redacted) and if there was, what remedies to order.
45. Rule 9 of the International Student Contract Dispute Resolution Scheme Rules 2016 states that an adjudicator is required to act in accordance with “what is fair and reasonable in all the circumstances, have regard to the law, the relevant good practice, the code, and other Government policies.”  Further, “The adjudicator is not bound by either the rules of evidence or previous decisions and is required to determine the dispute according to the substantial merits and justice of the case, and in doing so is not bound to give effect to strict legal obligations or to legal forms or technicalities.”

Terms of the contract

46. One of the difficulties in adjudicating this matter was to determine what the terms of the contract were. The contract terms are what the dispute is to be measured against. 
47. When Ms (Redacted) submitted her application to study with (Redacted), the declaration section confirmed in part:

I will observe the regulations and rules of conduct while studying at (Redacted).  I understand that my tuition may be terminated if I do not abide by the Rules and Regulations.

48. Based on this declaration, it would seem that the only terms and conditions that apply to Ms (Redacted) would be the obligations contained within the regulations of rules of conduct.  The relevant ones were set out at paragraphs 9 and 10 of this decision. 
49. In addition to regulations and rules of conduct there are also obligations under the Education (Pastoral Care of International Students) Code of Practice 2016 (the Code).
50. Of particular relevance is clause 16C of the Code:

16C Process: disciplinary action

Any disciplinary action process that is taken by a signatory must be in accordance with the principles of natural justice (which include those necessary to ensure the prompt, considered, and fair resolution of the matter that is the subject of the action).

51. I also note clause 21 which requires that signatories must provide a safe study environment and provide “adequate support”.

Ms (Redacted)’s complaint

52. Ms (Redacted) provided extensive documentation to support her case including statements from students in her class.  I have considered Ms (Redacted)’s evidence and submissions very carefully. 
53. It seems clear that from the early stages of Ms (Redacted)’s homestay that there were difficulties.  Ms (Redacted) expressed these concerns to (Redacted) staff and believed that (Redacted) staff did not address her concerns.  However, the evidence showed that (Redacted) staff met with Ms (Redacted) at her request on 5 September 2019, to discuss the issues with the homestay. Ms (Redacted) noted:

… Student presented several topics but didn’t accept any explanation/offer of help from me. She was rude, raised her voice several times and was insulting.

54. The evidence showed that there were a number of incidents reported by the homestay family regarding Ms (Redacted)’s behaviour and that the (Redacted) staff worked with Ms (Redacted) and the homestay placement to try and address these issues.  Unfortunately, despite the support provided by (Redacted) staff to Ms (Redacted), further incidents of a similar nature were reported. 
55. (Redacted) submitted that Ms (Redacted)’s behaviour towards the homestay was inappropriate and a breach of its rules.  Despite (Redacted) efforts to support Ms (Redacted) and address the concerns she raised, there were on-going concerns that were being raised by the homestay regarding Ms (Redacted)’s behaviour.
56. It is clear from the evidence that (Redacted) investigated Ms (Redacted)’s concerns with the homestay placement.  (Redacted) considered that the homestay placement was appropriate and Ms (Redacted)’s concerns were not upheld.  However, Ms (Redacted) was not satisfied with that outcome.
57. Ms (Redacted) produced photographs of meals that were provided by the homestay placement and photographs of ants on a windowsill.  As I understand it Ms (Redacted) submitted that the photographs were evidence of the inadequacies of the placement. However, I have considered the photographs and I do not agree.  The photographs of the meals do not show anything inappropriate and the photographs of the ants, while showing a small number of ants, in my view was not evidence that the homestay placement was inappropriate.
58. On 6 September 2019 Ms (Redacted) cancelled the homestay placement, however she did not leave the placement on the agreed date which lead to further issues being raised by the homestay family.
59. Despite Ms (Redacted)’s belief that (Redacted) staff did not adequately address the issues she raised with the homestay, the evidence showed that (Redacted) staff provided considerable support to both Ms (Redacted) and the homestay placement to address the identified issues.
60. Ms (Redacted) also raised issues regarding the adequacy of the course content and how it was taught.  She provided a number of audio recordings of her class being taught.  The recordings did not assist Ms (Redacted)’s case and in my view did not show that the (Redacted) staff were preforming their roles inadequately.
61. I noted that (Redacted) are accredited by NZQA to provide the New Zealand Certificate English Language (Level 5) which is the course that Ms (Redacted) enrolled in.  I also noted that the qualifications and experience of the teacher Ms (Redacted).  Ms (Redacted) did not provide evidence to support this part of her complaint in relation to course delivery. 
62. I note that part of the NZQA investigation addressed this issue.  NZQA are the most appropriate body to consider the adequacy of the course and the teaching. It determined that there was “there is no evidence to confirm lack of ability of the teachers or effectiveness of the teaching of NZCEL (Level 5)”. Ms (Redacted) has not provided any evidence to contradict the findings of the NZQA investigation.
63. Ms (Redacted) also complained that she was not treated in a “fair and equitable way” by (Redacted).  Ms (Redacted) mentioned that she was “bullied” by (Redacted) staff, however the evidence showed that (Redacted) staff on numerous occasions provided appropriate support to help Ms (Redacted) address the issues that she raised.  As noted above, there were a number of incident records completed regarding Ms (Redacted)’s behaviour.    Ms (Redacted) completed an incident record on 5 September 2019 which detailed that Ms (Redacted) met with Ms (Redacted) to discuss the issues raised by Ms (Redacted).  Ms (Redacted) noted:

Student requested a meeting with Office Manager. Met her at 3pm.  Student presented several topics but didn’t accept any explanation/offer of help from me. She was rude, raised her voice several times and was insulting.

I tried to leave the meeting room and she cornered me and shut the door.  I opened again and left towards my office.  She cornered me again and when I got to the ‘staff only area’, she pushed me and the door, entered and refused to leave.  She continued yelling at me.

64. I have no reason to disbelieve Ms (Redacted)’s account of the incident.  I noted that the police records would support the view that Ms (Redacted)’s behaviour was inappropriate.  For example, of 9 September 2019 Ms (Redacted) attended the (Redacted) Central Police Station to make a complaint.  After being advised by police that they were unable to assist, she left the police station and “called 111 making accusations that she was spat at by front counter staff”.  The evidence in its totality showed that Ms (Redacted)’s behaviour was inappropriate and challenging.  The (Redacted) staff provided significant support to Ms (Redacted) and in my view dealt with Ms (Redacted) in a professional and compassionate manner.

65. Ms (Redacted) also complained that the course was not fit for her stated purpose and at the correct level for her abilities. However, NZQA investigated this issue and found that the NZCEL (level 5) was “fit for her stated purpose and at the correct level for her abilities”.
66. Ms (Redacted) also complained that she was misled by (Redacted)’s agent (Redacted) and (Redacted).  This complaint was also investigated by NZQA who found that there was no breach by (Redacted) and no evidence to suggest that (Redacted) or Mr (Redacted) had acted inappropriately.
67. The investigation by NZQA was similar in nature and covered the same issues she raised with the iStudent Complaint.  The complaint was investigated by Mr (Redacted) and he provided a comprehensive report detailing the outcome of the investigation.  Mr (Redacted) provided a thorough and well-reasoned explanation which was supported by the evidence. 
68. I do note that the NZQA investigation was not investigating a possible breach of contract and as such I must form my own view independent of NZQA regarding Ms (Redacted)’s complaint.  However, NZQA investigated whether (Redacted) had breached any of its obligations under the Code and concluded that it had not.
69. In forming my view, I am able to take into account NZQA’s investigation.  I considered Mr (Redacted)’s report to be compelling and persuasive.  He is independent of the parties and was undertaking a statutory function on behalf of NZQA when he investigated Ms (Redacted)’s complaint.  Ms (Redacted) advised me that NZQA have commenced another investigation, however she did not provide any details of this new investigation.  Further, Ms (Redacted) did not provide any submissions identifying any flaws in Mr (Redacted)’s report or investigation.  As such, for the reasons outlined above, I consider Mr (Redacted)’s report persuasive.
70. As NZQA is independent of the parties, I am able to have confidence that its conclusions are impartial and based on the evidence.  The same can be said regarding the police reports.  The reports detailed behaviour by Ms (Redacted) which I considered to be inappropriate and showed a similar type of behaviour as detailed in the incident records.  As a whole, the evidence showed that there were a number of incidents where Ms (Redacted) acted inappropriately towards both (Redacted) staff, police and the homestay placement.  Further, the evidence showed the (Redacted) staff acted appropriately and provided Ms (Redacted) with ample support when addressed the issues she raised and when engaging her in its disciplinary process. 
71. I find that in accordance with the evidence, (Redacted) fulfilled its obligations under the Code and as such there was no breach of the contract.

Dismissal

72. Prior to (Redacted) commencing the formal disciplinary process, Ms (Redacted) did raised issues with the homestay placement.  ((Redacted) staff met with Ms (Redacted) to address these issues.  However as noted above Ms (Redacted) was unwilling to accept (Redacted)’s explanation.  I am satisfied that (Redacted) investigated Ms (Redacted)’s issues regarding the homestay and attempted to address these concerns.  Despite (Redacted’s efforts to address Ms (Redacted)’s concerns, it continued to receive reports of Ms (Redacted)’s inappropriate behaviour.  These further incident records lead to the formal disciplinary process being started.

73. In order to determine if the dismissal of Ms (Redacted) from the course was reasonable, I must consider not only the grounds on which the dismissal was made, but the process leading to the dismissal

74. On 6 September 2019 (Redacted) issued Ms (Redacted) with a “verbal warning letter”.  (Redacted) staff met with Ms (Redacted) and provided her with an explanation for the letter.  Prior to the issuing of the letter (Redacted) had received complainants regarding Ms (Redacted)’s behaviour as outlined above.  Attempts had been made to address the behavioural issues and provide Ms (Redacted) with support. During that meeting (Redacted) staff explained to Ms (Redacted) what would happen if further incidents were reported and confirmed the standard of behaviour excepted from her in accordance with the rules of conduct.[4]

75. Unfortunately, there were further incidents and (Redacted) issued Ms (Redacted) with a written warning on 9 September 2019, the evidence showed that (Redacted) had received a number of complaints regarding Ms (Redacted)’s behaviour. 

76. When (Redacted) issued Ms (Redacted) with the written warning, its staff met with her and explained the reasons for issuing her with a warning.  In addition, (REDACTED) staff provided support to Ms (Redacted) and it is clear from the evidence that (Redacted) staff continued to support Ms (Redacted), however further incidents were reported, and Ms (Redacted) was eventually dismissed from the course.

77. On 12 November 2019 (Redacted) staff issued a “dismissal letter” to Ms (Redacted).  The letter outlines the reasons for the letter being issued.  ((Redacted) staff met with Ms (Redacted) and explained the reasons for issuing the dismissal letter.  (Redacted) staff became concerned about Ms (Redacted)’s behaviour and the police were called.  Police then served Ms (Redacted) with a trespass notice, trespassing her from (Redacted)’s premises.  I do note that Ms (Redacted) returned to (Redacted)’s premises on 15 November 2019 despite being trespassed from the property.  Police were called once more and warned Ms (Redacted) that she was in breach of the trespass notice.

78. The evidence showed that during the entire time that (Redacted) staff were engaged with Ms (Redacted) that they acted in a professional and compassionate manner.   This is especially true during the formal disciplinary process. (Redacted) staff clearly identified to Ms (Redacted) the behaviour that had led to firstly, the verbal warning, and then written warning and finally the dismissal letter.  (Redacted) staff went to significant lengths to explain and engage Ms (Redacted) in the process. (Redacted) staff also provided significant support to Ms (Redacted) to assist her and to try and address the issues raised by Ms (Redacted).

79. Based on the evidence, (Redacted) acted reasonably in implementing the disciplinary process due to Ms (Redacted)’s behaviour.  At each stage of the process (Redacted) staff acted appropriately as further complaints were received. As noted above (Redacted) staff explained the process to Ms (Redacted) and provided her with ample support.  As such I accept that (Redacted) had reasonable grounds to commence the disciplinary process and that the process at every stage was explained to Ms (Redacted).  Further, that Ms (Redacted) was provided with continual support and was given reasonable opportunity participate in the process.

  In conclusion, I make following findings:

• (Redacted) acted reasonably in dismissing Ms (Redacted) from the course.  There was no evidence that (Redacted) had acted unreasonably.  There was no evidence presented to me that (Redacted) breached its contractual obligations to Ms (Redacted). Rather, the evidence showed that Ms (Redacted) breached her contractual obligations in terms of behaviour.
• (Redacted) and its staff acted appropriately when dealing with Ms (Redacted).  (Redacted) fulfilled its obligations under the Code and as such there was no breach of the contract on (Redacted)’s part. As such Ms (Redacted) does not have an entitlement to a refund of her course fees of any compensation.

Proposed Decision

81. The proposed decision of the International Student Contract Dispute Scheme is that Ms (Redacted)’s complaint is dismissed.
82. Both parties now have a final opportunity to provide further submissions before a final decision from the International Student Contract Dispute Scheme is issued.

Final Decision

1. The proposed decision as set out above was provided to the parties.
2. No further submissions were received from the Provider.
3. The Student provided further documents including an email from (redacted) advising (redacted) that the “the police file (redacted) has been closed and filed.”  There is an email from (redacted) marketing manager (redacted) to Mr (redacted) advising amongst other things the schedule for Ms (redacted)’s first day at (provider). Finally, an email from (redacted) team manager (redacted) advising Ms (redacted) that he was unable to “write personal references for students.”
4. I have considered the further documents that Ms (redacted) provided.  I note that in addition to the above-mentioned documents Ms (redacted) refiled documents which she had previously filed in this matter and which I had previously considered. The additional documents did not assist Ms (redacted) in her matter and were of little relevance to the issue to be determined.  Unfortunately, the additional documents did not provide any evidence that would have changed my proposed decision.
5. As such, the final decision of the International Student Contract Dispute Scheme is that Ms (redacted)’s complaint is dismissed.

 

Adjudicator
Paul Munro
22 July 2020