Posted by 學校認為老師管教學生不當(例如命全班學生一人一信書寫該班某生的負面行為)、後續行為消極(不回復家長陳情書、經通知出席教學觀察會議未到)，施以申誡1次處分，老師不服，如何提起訴訟爭取自己權利?
法院見解(最高行政法院109年度上字第1165號判決)，要旨如下：
1.公立高中以下學校考列教師年終成績考核，因對教師之考核獎金、名譽、日後介聘或升遷調動等權利或法律上利益產生不利之影響，屬侵害教師權益之具體措施，教師如認學校上開具體措施致其權利或法律上利益受侵害，即得依法向行政法院提起撤銷訴訟。又傳道、授業及解惑乃教師對於學生之基本任務，教師之工作權與學生之受教權均受憲法保障，而教師是否已盡其所附之上開義務，學生之受教權是否受到充分之保障，往往因師、生、親間立場不同，彼此認知不同而產生衝突，故應有公正客觀之監督機制辦理平時、年終等成績考核，以決定獎懲或續聘、資遣等事項，故教育主管機關亦因而訂頒相關法令設置考核會及教評會。而教師平日之行為舉止是否堪為學生表率、其教學是否認真得以勝任其傳道、授業及解惑義務，並非僅憑單一事件即得判斷，須經相當時日之觀察、了解始足以為之，然事實之觀察及判斷卻又往往因角色不同而產生認知上差異。因而教師平時考核獎懲及年終考績考核事件，涉及高度屬人性之人格評價，且教學、訓輔、服務、品德生活及教育行政之品質優劣，涉及教育專業領域知識，由監督受考人職務行使具最緊密關連性之單位主管或機關首長進行初核，再經教育專業人員組成之考核會考核，符合功能最適理論。又基於尊重考核評定者及考核會之專業性、不可替代性及法律授權之專屬性，應承認其考核之決定有判斷餘地。而就此類由學校機關享有判斷餘地事件之司法審查，參照司法院釋字第553號解釋理由意旨，就年終考績等事項，行政法院應採較低之審查密度，故除非違反考核之法定程序、判斷出於不正確之事實或錯誤資訊、違反一般公認之價值判斷標準、逾越權限或考核有濫用權力等情事外，本院對被上訴人平時考核獎懲及年終成績考核之決定應予適度尊重。
2.綜觀上開考核會提案單及考核會會議紀錄可知，提案單係考核會辦理上訴人平時考核之基礎事實。至原審認定之上開第1項至第3項部分(註：命全班一人一信書寫某生負面行為、叫學生去訓導處罰站30秒等)，均非考核會提案單內容，亦未經考核會討論。則原審以被上訴人基於上開事實，經法定程序，由考核會辦理平時考核結果，有成績考核辦法第6條第1項第6款第7目規定之「教學、訓輔行為失當，有損學生權益」予以申誡1次處分，於法尚無違誤等情，即有認定事實未依證據之違背法令情事。原審復未就申誡處分獎懲事由是否與事實相符？是否該當成績考核辦法第6條第1項第6款第7目規定之「教學、訓輔行為失當，有損學生權益」？予以調查，乃嫌速斷，核有未盡職權調查義務及判決不備理由之違誤。
3.原審就上訴人對學校相關會議資料有屢拒簽收之情，審認上訴人不符合行為時成績考核辦法第4條第1項第1款第3目「服務熱誠，對校務能切實配合。」之規定…，已詳述得心證之理由及法律上之意見，並就上訴人之主張何以不足採，分別予以論駁甚明，其所適用之法規亦無違誤。上訴意旨雖主張：不能僅以上訴人未親自簽收文件即謂上訴人對校務不切實配合，即便上訴人未親自簽收文件，亦有加以回覆處理，確無校務不配合情事，原判決未詳加審酌，有判決理由不備之違法云云，核屬執其個人主觀之意見，難謂為原判決有違背法令之情形。
資料整理：蘇得鳴律師。
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