Issue

  1. [REDACTED] (the Student) commenced a Level 5 Diploma in [Course] (the programme) at [REDACTED] ( the Provider) on 22 October 2018.
  2. Following an incident on campus involving his property on 7 May 2019, the Student went to the Police and lodged an offence/incident report.
  3. There was a second incident between the Student and one of the Provider’s staff members on 10 June 2019. The Police were called to the Campus.
  4. The Student’s enrolment was terminated on 11 June 2019 and the Student was trespassed from the Campus.
  5. The Student made a complaint to the Provider.
  6. The Student with their Lawyer met the Provider on 12 July 2019.
  7. The Student declined a proposal on how the Student could complete his studies made by the Provider on 9 August 2019.
  8. iStudent Complaints received a complaint from the Student on 3 December 2019.
  9. The Student also made a complaint to NZQA on 3 December 2019.
  10. Following an investigation NZQA shared their findings that the Provider had not complied with Rule 5.1.5(b) of the Private Training Enterprise (PTE) Registration Rules.
  11. The Student re-contacted iStudent Complaints on the basis that there was a contractual dispute between the Student and the Provider. The Student was seeking a full refund of his fees or reinstatement of his enrolment so that he could complete his studies.
  12. The Student and the Provider met in mediation on 27 July 2020 in an attempt to reach agreement on the above issue. The Provider and the Student were unable to reach agreement and the matter has now been referred to adjudication.

Background

  1. The following sequence of events in this matter is a summary of the Student’s and Provider’s submssions to the International Student Contract Dispute Scheme. All submissions have been considered whether they are mentioned or not. 
  2. On 2 August 2017 the Student signed an application to study Level 5 Diploma in [Course] at [REDACTED].
  3. The student signed the Terms and Conditions of the Enrolment and the Rules and Regulations of [REDACTED].
  4. On 16 August  2018 the first of two Fee Protection Student Acknowledgement forms was signed by the Student.
  5. On 22 October 2018 the Student signed an Enrolment Contract with the Provider. The course started 22 October 2018 and finished on 13 September 2019. It was 46 weeks duration.
  6. Around the same time as the Student’s enrolment, the Student wrote and signed a letter of undertaking regarding his conduct and behaviour while enrolled at [REDACTED].
  7. On 22 October  2018 the programme commenced.
  8. On 23 October 2018 the second Fee Protection Student Acknowledgement Forms was signed by the Student. The total student fee was $10,000.
  9. In November 2018 the Student received a certificate of appreciation from the New Zealand Police for his service to the International Student Ambassador Group.
  10.  On 11 December 2018 the Student attended orientation and signed the orientation sign off form.
  11. Four pages, which appear to be from the Provider’s 2019 Student Handbook are signed by the Student and their classmates.  The pages are not dated. The pages include policy on being on time, behaviour, classroom guidelines and disciplinary proceedure and rules.
  12. On 29 March 2019 the Student’s tutor raised a concern about the Student’s behaviour in class via email to the Programme Leader.
  13. On 1 April 2019 the Student received a low attendance letter by the Provider.
  14. On 7 May 2019 the Student emailed the Provider that he had found the contents of his bag had been interferred with, and a classmate’s book was inside his bag. He was concerned that someone may have had access to his private information and assignment material on the USB stick in his bag. 
  15. On 7 May 2019 the Student lodged a Offence/Incident report at Auckland Central Police Station.
  16. Between 7 May and 14 May 2019 there are multiple emails and recollections of discussions submitted by both the Student and the Provider about the classroom environment and “cultural favouritism.” 
  17. On 8 May 2019 the Provider met with the Student’s classmates about the bag incident. The matter was unresolved.
  18. On 8 May 2019 the Student met with the Provider about the bag incident. The Student asked to meet with [REDACTED] CEO. Notes were taken by the Provider at the time.
  19. On 9 May 2019 the Student completed a change of personal details form.
  20. On 9 May 2019 the Student met with the [REDACTED] CEO and Programme Leader, a verbal warning was given to the Student. He was told to improve his behaviour and offered counselling which the Student rejected.
  21. On 10 May 2019 the Provider emailed the Student that the bag matter is unresolved and refered to the meeting with the CEO in [32]. The Provider also stated in the email that ‘you are a good Student and do well in your assessments. We want you to shine in other areas as well and add value to yourself while being an [REDACTED] student.”
  22. On 10 May 2019 the Provider and Student corresponded by email about his health and the Provider’s requirement for a medical assessment by 15 May 2019.
  23. On 14 May 2019, the Provider emailed the Student to advise that he could attend class.
  24. On 16 May 2019 the Student’s tutor emailed the Programme Leader about the Student’s behaviour.
  25. On 22 May 2019 the Student informed the Provider that his laptop was broken.
  26. On 23 May 2019 the Provider and Student met for a Disciplinary Procedure/Counselling meeting. This was in response to an incident on 22 May 2019.  Notes were taken by the Provider and the Student audio recorded the meeting.
  27. On 23 May 2019, the Student made a complaint about three classmates and was allowed to sit out of the class.
  28. On 23 May 2019, the Provider met with the Student’s three classmates. They were given a first warning for their behaviour in the class.
  29. On 24 May 2019, the Provider emailed the Student about the Provider’s meeting with his classmates [40]. The Student was reminded that he was on his final warning. The Student was to return to the classroom on the Monday morning.
  30. On  24 May the Student emailed his thanks to the Provider’s management team on their professional response to his concern and issues.
  31. Between 23 May and 29 May 2019 the Provider exchanged 18 emails to arrange an appointment for the Student with a counsellor.
  32. On  27 May 2019 1:03PM, the Provider emailed the Student, that the counsellor’s appointment was a requirement that he needed to fufil for his continued enrolment.
  33. At 1:54PM on the same day the Student replied, thanking the Provider for their kindly support and help but that he did not require a therapist.
  34. On  28 May 2019, the Provider emailed the Student to say that if he did not meet with a counsellor, then the Provider would terminate the Student’s enrolment.
  35. On 4 June 2019, the Provider met with the Student and terminated the Student’s enrolment when he did not provide a report on his suitability to continue to study at [REDACTED].
  36. After the meeting on 4 June  2019, the Provider emailed the termination letter to the Student.
  37. On 4 June 2019, the Student and Provider exchanged more emails.
  38. On 6 June 2019 the Student underwent a Psychiatric assessment by Dr [REDACTED] at [REDACTED].
  39. On  7 June 2019 1:13am the Student emailed himself the report from Dr [REDACTED].
  40. On 9 June 2019 at 6:06pm the Student forwarded Dr [REDACTED]’s report to the Provider.
  41. On 10 June the Student came to class and there was an incident between the Student and a staff member.
  42. On 11 June 2019 the Provider terminated the Student’s enrolment. The Student was given a final termination letter. The Police were notified. A decision had also been made to trespass the Student from the campus.
  43. On 13 June 2019 the Student emailed the Provider pleading for them to reconsider their decision due to his family’s circumstances in India.
  44. On 13 June 2019 the Provider emailed the Student that he could make a formal complaint throught the Provider’s complaint process about the decision and offered the Student counselling.
  45. On 25 June 2019 the Student made a formal complaint to the Provider.
  46. On 12 July 2019 the Provider met with the Student and their lawyer to discuss the Student’s formal complaint.
  47. On 9 August 2019 the Provider provided a proposal for re-enrolment at an offsite location so the Student could complete his four outstanding modules.They had worked out the costing involved which would be met by the Student. The Student declined the offer.
  48.  The Student raised a complaint with iStudent Complaints and with the New Zealand Qualifications Authority (NZQA) on 3 December 2019.
  49. The Student’s complaint was acknowledged by iStudent Complaints on 9 December 2019 and the Student was advised on 20 December 2019 that pending a review of his complaint by NZQA, iStudent Complaints would wait for the outcome of the NZQA Investigation before proceeding further.
  50. NZQA undertook an investigation into three issues.
  51. On 18 February 2020 NZQA shared that they found [REDACTED] had not complied with Rule 5.1.5 (b) of the PTE Registration Rules. NZQA found that [REDACTED] had not breached Rule 5.1.4 (e) or (f) of the PTE  Registration Rules.
  52. On 8 June 2020 the Provider declined the Student’s request for a refund of his fees.
  53. On 12 March 2020 the Student recontacted iStudent Complaints. The Provider  was contacted by iStudent Complaints on 17 March 2020. The Student requested from the Provider a full refund of his fees or an opportunity to complete the four remaining modules of his Diploma.
  54. On 21 July 2020 the Student and the Provider met in mediation in an attempt to reach agreement on the above issue. The mediation concluded without a resolution being reached.
  55. The matter was referred to adjudication on 7 August 2020 and the Student and the Provider have now had the opportunity to make their submissions.

Positions of the parties

The Student’s position

  1. The Student’s submissions to the International Contract Dispute Resolution Scheme are dated 28 August 2020 and further submissions on 13 September 2020.
  2. The Student’s postion is that they are entitiled to either a full refund of their fees or be allowed to complete their studies. They base this on the following information in their submissions.
  3. The Student says they were not provided the Student Handbook when they commenced their study nor was it available to them on the Provider’s website during their study.
  4. The Student says the Provider has falsely alleged that they were a “mentally sick person.”
  5. The Provider is said to have showed “culural favouritism” to the Student’s classmates.
  6. The Provider sent the final termination letter to the Student before he could be assessed by a mental health specialist and therefore provide a medical certificate to the Provider.
  7. The Student says the Provider forced and harrassed the Student to attend the couselling session arranged by the Provider or his enrolment would be terminated.
  8. The Student says the Provider falsely alleged he physically assaulted a staff member at [REDACTED].
  9. The Student has said the Provider’s solution offered after the meetings at [58 [59],was inappropriate and against the rules of NZQA. The total cost was $28,680 plus rent for the premises, the costs were to be met by the Student.
  10. The NZQA investigation finding [63] was that the Provider did not follow the PTE Registration Rules and the Student’s termination was unlawful.

The Provider’s Position

  1. The Provider’s position is detailed in their submissions dated 28 August 2020 and further submissions on 13 September 2020.
  2. The Provider’s position is that the Student’s enrolment was terminated because “he had failed to follow [REDACTED]’s instructions to get yourself certified by a professional that you are stable to cope with class situations, fellow students and your studies” [48] and that “his behaviour on 10 June 2019 did not meet the rules and procedures of the Provider.”
  3. That the Provider has not breached their contractual obligations to the Student. They base this on the following information in their submissions.
  4. The Student had not met the the Terms and Conditions of their contract [17], in particular the Behavioural Misconduct and Termination of Agreement clauses.
    1. Student Conduct: All enrolled students must comply with all [REDACTED]’s terms and conditions, policies, standard procedures, and rules and regulations that apply, not limited to the rules and regulations that are published.
    2. Behavioural Misconduct: All Students must comply with [REDACTED]’s disciplinary procedures. [REDACTED] reserves the right to terminate this agreement if the student’s conduct, behaviour or compliance with the disciplinary procedures is unsatisfactory.
    3. Termination of Agreement: If a student fails to meet all the obligations set out under this agreement, [REDACTED] will inform the student in writing, explaining how and why the student has failed to meet the obligations and what needs to be done by when. If the Student fails to comply accordingly, this agreement will be terminated.

In the event of a termination of enrolment, the student will be asked to leave immediately and will not be entitled to a refund, deferral, or their graduation certificate. [REDACTED] will report all students visa holders to Immigration New Zealand about their current status and also notify the student’s agent.

  1. The Student had not adhered to the Provider’s Rules [15].

Mature conduct and behaviour is expected at all times. [REDACTED] reserves the right to suspend or dismiss any person who is disruptive or disorderly.

  1. That the Student failed to adhere to the undertakings of good conduct and behaviour which he made in his letter at the time of  his enrolment with the Provider [18].
  2. That the Provider attempted to support and work with the Student through email correspondence with the student [27] [33] [35] [41] [49] [56] meetings with the Student [30] [32] [38] [47], arranging counselling for the Student [34] [43] [44] [45] , and then following his formal complaint [56][57] to the Provider, meeting with the Student and his lawyer [58], and providing a proposal for him to complete his studies [59].
  3. That the Provider had “overiding obligations” to comply with the Section 36 Health and Safety at Work Act 2015 and the Private Training Establishment Rules 2018 5.1.1.Status, ownership, interests, sites and environment.
  4. The Student’s enrolment was terminated due to behavioural misconduct and therefore the Student is not entitled to any refund at [15].

In the event of a termination of enrolment, the student will be asked to leave immediately and will not be entitled to a refund, deferral, or their graduation certificate. [REDACTED] will report all students visa holders to Immigration New Zealand about their current status and also notify the student’s agent.

Discussion

  1. The question which the International Student Contract Dispute Resolution Scheme must determine:
    1. Did the Provider fulfil their contractual obligations to the Student?
    2. If not, is the Student entitled to a refund of $10,000.00 being the total amount paid to the Provider for the Programme.
  2. For the sake of clarity, the adjudicator is unable to enforce the Provider to reinstate the Student, nor remove the trespass order on the Student to the Campus.
  1. Section 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.”
  2. The Student and Provider accept that there was was a valid contract between the Student and the Provider, that the total fee was $10,000 [20] for the programme which commenced on 22 October 2018.
  3. The Student attended for approximately five months before the May 2019 incident. In [33] reflected that the Student had intially done well in their programme.
  4. The Enrolment Contract [17] submitted by the Provider included a declaration that the Student had read, understood and accepted the terms and conditions of enrolment found on the Providers website including:
    1. any breach that may lead to termination or withdrawal of the Student’s enrolment
    2.  had read and understood the Provider’s refund and withdrawal policy
    3. read and understood the Provider’s rules and regulations and disciplinary policy.
  5. The Terms and Conditions of the Enrolment signed by the Student included the Rules and Regulations of [REDACTED] at [15].
  6. The Provider submitted two Disciplinary Procedures in their submission. One, they titled as “old” at [23] and the other “updated’. The writer concludes that the “old” Disciplinary procedure was current in 2019 during the Student’s enrolment and the “updated” version is the current (2020) Disciplinary Proceedure.
  7. The “old” Disciplinary Procedure was included in the four pages signed by the Student and their classmates. [23].
  8. The “updated” Disciplinary Proceedure information is included in the Student Handbook that the Provider submitted.
  9. The  Student ticked yes and signed the orientation sign off form at [22] which included the following questions:
    1. Are you aware of the Provider’s Student fees protection and refund policy?
    2. Are you aware of the complaints and grievance procedures of [REDACTED]?
  10. The Student submitted they did not have access to the 2019 Student Handbook.
  11. The Student submitted that there was “cultural favouritism” within the classroom. Neither party provided the adjudicator with a definition of cultural favouritism, so in the absence of a definition, the meaning of cultural favouritism will be taken to mean one culture being favoured over another.
  1. The Provider in their submission disputed the “cultural favouritism” claim and submitted that, “[REDACTED] has a multicultural environment having students and tutors from different nationalities. All students at [REDACTED] enjoy this multicultural environment except the Student.”
  1. In the Pastoral Care of International Student’s Code of Practice 2016 (Code), Outcome 7 (c): student support, advice and services, the Provider is to provide students, information and advice on how to effectively interact with persons from different cutural backgrounds and the cultural and community support available to them.
  1. The Provider submitted that they wanted to ensure that all students and staff were happy, healthy, and safe on the Campus. The Provider’s interactions from May 2019 with the Student were framed by this overriding obligation at [85] to all on Campus. They referenced the following:
    1.  Section 36 Health and Safety at Work Act 2015.

That is, their primary duty of care was to provide a healthy and safe environment for all on their campus - the Student, other students, and the Provider’s employees.

    1. The Provider’s obligation under the PTE Rules 2018 5.1.1. Status, ownership, interests, sites and environment:

(e)  to ensure the premises and sites it uses (including for any off site learning) remain safe and adequate for the study or training provided, for its staff, for the number of students enrolled, for meeting students’ specific needs.

(f)  In other respects operate a safe and legally compliant environment, including (without limitation) the equipment it uses.

  1. In the Code Outcome 6 safety and well being, the Provider must provide a safe study environment for all students and provide adeqaute support for the well-being of their students.
  1. The health of the Student was discussed in both parties’ submissions. The Provider’s submission contained statements commenting about the Student’s mental health, “this shows he is not stable in his thinking.” 
  1. In the second meeting between the Provider and the Student at [38] which the Student audio recorded, the writer can hear the Provider often interrupt or talk over the top of the Student while he was speaking. 
  2. The Provider first discussed the request for the Student to have a medical assessment in email correspondence with him on 10 May 2019 [34].

“The school is now concerned with your anxiety issues, the safety of other students and staff on [REDACTED] campus, therefore, we need a certificate from a competent person/psychiartrist saying you are mentally in a sound condition of your health and will not be a threat to the environment.

You need to produce this certificate before attending any classes before 15th May 2019.”

The Student assured them of his “good behaviour to all on campus” and asserted that he was “well fit and good mentally so pls stop worrying about my behaviour….I cannot miss my studies just because its mistake of someone. As far proof is concerned we have no rights to investigate or collects proof regarding any incident. See u on Monday.”

  1. The Student was then permitted to return to class without a medical assessment on 15 May 2019 [35]. The Provider told the Student that this was his final warning, and that the Provider would “take further action if there were further misbehaviour.”
  2. The Student submitted that the final termination letter [53] was sent to him by the Provider before he could be assessed by a mental health specialist and provide a medical certificate to the Provider.
  3. The Provider started on 23 May 2019 [43] to arrange a Counsellor appointment for the Student and have a report written on his suitability to continue to study and informed the Student that it was a requirement for his continuation of enrolment on May 27 2019 [44] and again on 28 May 2019 [46].
  4. The Student was given the termination letter on 4 June 2019 [48]. In it the Provider informed the student, “You are not allowed on campus after the issue of this letter with immediate effect.”
  5. But then said,  “You are welcome to take counselling from a professional therapist and [REDACTED] is willing to extend full support. [REDACTED] will reconsider your enrolment depending on the outcome of the counselling and report” and then “We wish you success in the future, Thank you.”
  6. In the exchange on 4 June 2019 [49] the Student shared, “Respected mam I have already informed you that I am with councillor and Already told you that I am giving you certificate next week itself Though you have issued termination letter without any warning or asking me regarding any councillor certificate.”
  7. The Student then underwent a psychiatric assessment on 6 June 2019 [50]. This was ten days after the requirement email [44], and two days after the termination letter. The Student sent the report to the Provider on 9 June 2019, 13 days after [44] and five days after [46].
  8. The Student submitted that the Provider falsely alleged that the Student was mentally sick. Dr [REDACTED] in [52] concluded that the Student did not have a psychiatric condition.
  9. The Student submits that he did not physically assault a staff member.  When the Student returned to the campus [53], there was an incident which led the Provider to call the Police, and have a trespass order placed on him [54].
  10. The treatment of the Student in the Provider’s complaint and discipline process was investigated by NZQA [61]. It found:

“While [REDACTED] gave the student several chances to meet it’s behaviour requirements, NZQA expects that [REDACTED] would follow the disciplinary process laid out in the documents it provided to the student….…NZQA finds that by departing from the disciplinary process and by not formally responding to the students complaint, [REDACTED] was not fair and equitable in conducting these processes. [REDACTED] has therefore not complied with Rule 5.1.5 (b) of the PTE Registration Rules” at [63].

  1. Rule 5.1.5 (b) of the PTE Rules requires the Provider to look after the Student’s interests in particular, “Be fair and equitable in conducting it’s interactions with students and in implementing its student complaints, discipline, and appeals policies and procedures.”
  2. The Student claimed that the Provider’s offer to assist the Student to finish his studies [58] was against the rules of NZQA and that his termination is unlawful. NZQA concluded that the Provider had not complied with Rule 5.1.5 (b) of the PTE Rules [63].
  3. In this regard the adjudicator’s findings are as follows:
    1. The Student understood the terms and conditions of their contract with the Provider including the Disciplinary Procedure. The Student had received the information contained in the Student Handbook. The Student confirmed this by signing the application [14], enrolment [17] and orientation documents [22].
    2. The Student took part in his programme of study sucessfully for approximately five months.
    3. That the Provider was concerned about the health and safety of all on the Campus as they are required [102][103].
    4. NZQA found that the Provider did not comply with Rule 5.1.5 (b) of the PTE Registration Rules and therefore had not been fair and equitable in it’s interactions with the student [63].
    5. That the Provider contibuted to the distress the Student experienced during his enrolment and  exacerbated the behaviour of the Student on campus through some of their communication in meetings, the way they went about arranging the psychological support for the student, and how they communicated the deadline for the medical report.
    6. The Psychiatrist’s report said the Student did not have a psychiatric condition [52].
    7. The adjudicator is unable to comment on whether there was or was not “cultural favouritism” in the classroom as there was no supporting information provided.
    8. The adjudicator is unable to conclude whether the Student did or did not assualt a staff member as there was no supporting information provided.

Proposed Decision

  1. The proposed decision of the International Student Contract Dispute Scheme is that the Provider did not fufil their contractual obligations to the Student.
  2.  However, the Student was aware of the consequences for his behaviour on campus and his delay in responding to the Provider’s request to supply a medical report did not help his situation.
  3. The Student received benefit from his time at [REDACTED] by attending successfully for five months of his programme.
  4. Therefore the Student’s complaint should be partially upheld.
  5. The Provider should provide the Student a full refund of the fees paid for the four modules the Student was unable to complete in the Level 5 [Course] due to the termination of his enrolment.
  6. 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 determination

  1. The parties were invited to provide any final comments on the proposed decision issued 3 November 2020.
  2. No further comments have been received from the Provider.
  3. The Student indicated that he accepted the findings of the adjudicator.
  4. The final decision of the International Student Contract Dispute Resolution Scheme is as unchanged from the Proposed Decision.

 

Adjudicator
Helen Clarke
18 November 2020