Kevin Whelan v The Board of Trustees of Lindisfarne College [2026] NZERA 558

Lindisfarne College was justified in dismissing long-serving IT manager Kevin Whelan for a serious comment made to students while showing them CCTV footage of an accident. However, the College did not comply with the collective agreement when it paid four weeks in lieu instead of allowing one month's notice or properly invoking instant dismissal. The Employment Relations Authority awarded $717.92 gross short-paid notice and $12,000 compensation for unjustified disadvantage.

CCTV footage of a school accident

Mr Whelan had worked as the College's information technology manager for about 23 years. By August 2024, the school had approximately 80 CCTV cameras and Mr Whelan was responsible for aspects of that system.

One evening, a student driving a car on school grounds was involved in an accident with another student riding a bicycle. The next day Mr Whelan showed CCTV footage of the accident to the student driver and another student. While doing so, he remarked that the driver “should have backed up and finished him off”.

The student driver complained to the College. He described the comment as confronting and horrific, particularly because the accident remained raw and could have caused serious injury.

Disciplinary process and suspension

The College wrote to Mr Whelan setting out its concerns and advising that suspension on pay would be discussed. Mr Whelan provided a written response and attended a meeting before the rector decided to suspend him on pay.

The collective agreement permitted suspension with or without pay where the alleged offence was sufficiently serious. The Authority found the proposal had been communicated in advance and Mr Whelan had received two opportunities to comment—through his written response and at the meeting. The suspension was justified and did not establish a personal grievance.

Dismissal justified by a fine margin

Mr Whelan accepted making the comment but said it was black humour, a single misjudgment and something that would never be repeated. He relied on his long service, remorse and otherwise established relationship with the College.

The rector considered the comment considerably more serious. It had been made by an older adult and mentor immediately after a potentially serious accident to young students who looked to staff for guidance. The rector considered it capable of condoning violence or showing carelessness towards physical harm and inconsistent with the College's values.

The Authority found that the College had investigated sufficiently, raised its concerns, given Mr Whelan a reasonable opportunity to respond and genuinely considered his explanation. By a fine margin, the comment was sufficiently serious to amount to serious misconduct and dismissal was within the range of options available to a fair and reasonable employer.

The dismissal was based primarily on the comment, not merely on Mr Whelan showing the students the CCTV footage. The absence of a specific CCTV policy did not prevent the College from acting on the inappropriate comment.

The collective agreement still had to be followed

The collective agreement provided that termination would be on one month's notice unless otherwise agreed, except where serious misconduct warranted instant dismissal. The College did not use either option correctly.

It paid four weeks in lieu of notice without obtaining Mr Whelan's agreement. Four weeks was also slightly less than one calendar month and left him short-paid by the equivalent of two days.

The College did not clearly explain why the misconduct warranted instant dismissal rather than allowing Mr Whelan to work out his contractual notice. Nor did it attempt to agree on an alternative arrangement with him. The rector accepted he had misunderstood the different expressions used in the collective agreement.

The Authority found that an express condition of Mr Whelan's employment had been affected to his disadvantage. A finding of serious misconduct did not excuse the College from understanding and implementing the available contractual termination provisions.

Short-paid notice and compensation

Mr Whelan was awarded $717.92 gross for the short-paid notice. The College did not dispute the calculation.

The immediate end to his employment after approximately 23 years removed any opportunity to work out the notice period, attempt to repair relationships or leave the College in a more orderly way. The sudden exit also created a risk of unwarranted reputational damage. The Authority assessed the resulting harm as moderately serious and awarded $12,000 compensation.

No contribution reduction was made. Although Mr Whelan's comment justified dismissal, it did not contribute to the College's separate failure to understand and apply the notice clause correctly.

Why this case matters

Whelan v Lindisfarne College shows that a personal grievance can succeed in one respect even where dismissal itself is justified. Serious misconduct does not automatically mean summary dismissal has been properly invoked, particularly where the employment agreement distinguishes between termination on notice and instant dismissal.

Employers should identify the precise contractual termination option being used, explain why its requirements are met and calculate notice according to the actual wording. Four weeks and one month are not necessarily the same period.

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Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.