Bingham v St John Ambulance Western Australia Limited
[2014] WADC 122
•5 SEPTEMBER 2014
BINGHAM -v- ST JOHN AMBULANCE WESTERN AUSTRALIA LIMITED [2014] WADC 122
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 122 | |
| Case No: | CIV:3810/2009 | 18-21 NOVEMBER 2013, 26-30 MAY & 3-4 & 6 JUNE 2014 | |
| Coram: | WAGER DCJ | 5/09/14 | |
| PERTH | |||
| 42 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | MARIE BINGHAM ST JOHN AMBULANCE WESTERN AUSTRALIA LIMITED |
Catchwords: | Breach of contract Contract of employment Serious misconduct Whether wrongful repudiation of contract |
Legislation: | Nil |
Case References: | Adami v Maison de Luxe Ltd [1924] HCA 25; (1924) 35 CLR 143 Andrews v Ian Rollo Currie Nursing Home Old Colonists Society (1997) 41 AILR 3-535 Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239 Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2012] WASC 425 Carter v Dennis Family Corp [2010] VSC 406 Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 103 IR 160; (2000) 176 ALR 693 Gunton v Richmond-upon-Thames London Borough Council [1980] ICR 755; [1981] 1 Ch 448 Jones v Dunkel (1959) 101 CLR 298 Mills v Downer EDI Engineering Projects Pty Ltd [2011] WADC 82 North v Television Corp Ltd (1976) 11 ALR 599 Re Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 Sent v Primelife Corp Ltd [2006] VSC 445 Serventi v John Holland Group Pty Ltd [2006] FCA 1049 Shire of Esperance v Mouritz (No 1) (1991) 71 WAIG 891 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ST JOHN AMBULANCE WESTERN AUSTRALIA LIMITED
Defendant
Catchwords:
Breach of contract - Contract of employment - Serious misconduct - Whether wrongful repudiation of contract
Legislation:
Nil
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : Mr R W Bower & Ms L A E Bower
Defendant : Mr T J Hammond
Solicitors:
Plaintiff : Corser & Corser
Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Adami v Maison de Luxe Ltd [1924] HCA 25; (1924) 35 CLR 143
Andrews v Ian Rollo Currie Nursing Home Old Colonists Society (1997) 41 AILR 3-535
Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239
Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2012] WASC 425
Carter v Dennis Family Corp [2010] VSC 406
Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 103 IR 160; (2000) 176 ALR 693
Gunton v Richmond-upon-Thames London Borough Council [1980] ICR 755; [1981] 1 Ch 448
Jones v Dunkel (1959) 101 CLR 298
Mills v Downer EDI Engineering Projects Pty Ltd [2011] WADC 82
North v Television Corp Ltd (1976) 11 ALR 599
Re Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371
Sent v Primelife Corp Ltd [2006] VSC 445
Serventi v John Holland Group Pty Ltd [2006] FCA 1049
Shire of Esperance v Mouritz (No 1) (1991) 71 WAIG 891
- WAGER DCJ:
Bingham v St John Ambulance Western Australia Limited
1 Ms Bingham was summarily dismissed by St John Ambulance Western Australia Limited (SJA) from her position as office manager of the SJA sub-centre in Karratha because SJA determined she had breached her contract of employment by serious misconduct.
2 At a meeting on 17 April 2009 SJA gave its reasons for summary dismissal as being breach of policy and procedure in that Ms Bingham:
1. entered a first aid trainer's number against a course other than the name of the trainer conducting the course;
2. made a payment to a trainer who was not an employee of SJA;
3. avoided and breached SJA's payroll and procedures by making payments to employees and those who were not employees in an incorrect manner;
4. made a payment to herself directly from the sub-centre's funds without submitting a proper pay claim;
5. engaged and paid a non-accredited trainer for a training course;
6. engaged a person who was not an employee of SJA to assist her to do archiving in the office;
7. made a payment to herself for a training course while she was on leave without submitting the proper pay claim.
3 A written policy in relation to the discipline of SJA employees, the Employee Counselling Discipline Policy reviewed 30 June 2006 (the policy) (D395 tab 63) applied to the contract of employment. Relevantly, the policy contained the following provisions:
1 Serious misconduct is defined as serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of an employee's duties or to an employee's colleagues carrying out their duties; or
2. wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; or
3. reputation, viability, profitability of the employer's business; or
4. the employee, in the course of the employee's employment, engages in theft, fraud or assault; or
5. being intoxicated at work; or
6. the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
4 Disciplinary action must be proportionate to the degree of misconduct concerned. In determining the appropriate disciplinary action to be taken, SJA must consider the following factors:
1. the nature and seriousness of the misconduct;
2. the degree of relevance to the employee's duties or to the reputation of the employer;
3. the circumstances of the misconduct;
4. any mitigating factors; and
5. the previous employment history and the general conduct of the employee.
As a result of the disciplinary investigation one of the following may apply:
1. if a previous warning has not been given, a warning may be issued, or in the case of serious misconduct, a final warning may be issued or an employee terminated; or
2. if a previous warning has been given, a further or final warning may be issued or an employee terminated; or
3. if a previous warning has been given, an employee may be terminated.
Where the circumstances are appropriate, counselling, training, performance management and allocation to other duties may be used in conjunction with or in lieu of other discipline outcomes in relation to performance or misconduct.
The manager will be responsible for making written records of all relevant discussions under this policy.
All formal meetings, interviews, statements and other relevant materials are to be documented and may be sighted by the employee concerned.
Disciplinary action will only be used as a last resort. SJA will make every reasonable effort to resolve unsatisfactory performance through guidance, counselling and appropriate employee development. Where possible misconduct has occurred a manager will not take any action to discipline or terminate the services of an employee without first investigating all of the relevant circumstances or inviting the employee concerned to respond to any allegation.
Termination of employment for disciplinary reasons shall only occur in accordance with this policy, except for those employees who are terminated at the conclusion of a probationary period of employment.
Unsatisfactory performance is defined as where the employee fails to adhere to the required performance standards or the standard of performance that may reasonably be expected of an employee in that position.
Implicit in the process is that:
1. employees have been adequately trained to carry out their duties; and
2. any problems arising from a lack of training will be addressed prior to utilising formal disciplinary performance management processes. This will not preclude the use of formal disciplinary performance management processes where other issues not relating to training arise.
In the event that the provision of training does not resolve training issues, formal disciplinary performance management processes will commence.
5 Ms Bingham asserts that although she did not strictly follow policies and procedures she acted in good faith and in the best interests of SJA. Given the urgent demand for first aid training in the Karratha area in 2009 she argues she ensured first aid training was provided and the demand was met. Ms Bingham says she acted on the understanding that the committee that oversaw the sub-centre approved the arrangements she implemented in relation to first aid training and payment. She pleads that she did not receive proper training for her role as office manager. No effort was made by SJA to resolve any unsatisfactory performance on her part through guidance, counselling or employee development and training as required under the terms of her contract of employment and because SJA was inconsistent in its application of policy she did not know that her failure to follow procedure and policy would be considered as serious misconduct by SJA. Ms Bingham had no prior misconduct nor had she received previous warning. She had been an exemplary employee and proportionate action and proper investigation would have made her position clear.
6 Ms Bingham claims damages for the wrongful repudiation of her contract.
7 St John Ambulance Western Australia Limited argues the cumulative effect of Ms Bingham's conduct constituted serious misconduct. Ms Bingham was aware of the procedures of SJA and chose to follow a separate course without seeking SJA's permission to do so. Given she had summarily breached her contract. St John Ambulance Western Australia Limited's policies relating to discipline for conduct that fell short of serious misconduct did not apply.
8 The issues to be determined are:
1. What did Ms Bingham do in her position as officer manager SJA Karratha that was contrary to policy and procedure?
2. Did SJA fully investigate the matter following Ms Bingham's suspension and, if SJA failed to investigate the matter properly did they conclude that her conduct was serious misconduct when in fact it was not?
3. Was Ms Bingham's conduct serious misconduct that repudiated her contract of employment?
4. In the event Ms Bingham did not repudiate her contract what loss or damage has she suffered?
Serious misconduct
9 Serious misconduct is defined in the policy as:
Serious misconduct means:
• serious misbehaviour of a kind that constitutes a serious impediment to the carrying out of an employee's duties or to an employee's colleagues carrying out their duties;
• serious dereliction of the duties required by the employee
…
10 The definition is to be read together with cl 19.1.4 of the collective agreement that sets out that should a finding of serious misconduct be made out then the terms and conditions of Ms Bingham's employment provide for dismissal without notice.
11 The definition of serious misconduct in the policy is consistent with the common law position in respect of repudiation of the contract of employment resulting in summary dismissal.
12 Recently at first instance in Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2012] WASC 425 Le Miere J summarised the relevant common law principles in respect of summary dismissal for serious misconduct. Although Buitendag was the subject of appeal, the Court of Appeal dismissed the matter. His Honour's summary was neither the subject of appeal nor of comment and I adopt it as correctly stating the position. Le Miere J said [46]:
Two conditions must be satisfied at common law in order to justify a summary dismissal. First, there must be a breach by the employee of the terms of the contract or a demonstrated intention not to be bound by those terms. One of the ways in which an employee breaches their contract is by being guilty of misconduct. Second, the conduct must be sufficiently serious to allow summary termination. Mere misconduct is not sufficient, it must be serious enough to justify summary dismissal. It must constitute a repudiation of the contract or one of its essential conditions: [authorities are omitted].
13 It is only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. In Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 103 IR 160; (2000) 176 ALR 693, Kirby J said [51]:
Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. …
But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal.
14 The question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend on whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike at an essential element in the contract of service, namely, obedience to the lawful commands of the employer and the right of the employer to enforce discipline: Re Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371, 380 (Cook J).
15 An employer is entitled to summarily dismiss an employee for serious and wilful misconduct. Such misconduct must be of a kind that, as a practical matter, is likely to make maintenance of the contract of employment impractical: Serventi v John Holland Group Pty Ltd [2006] FCA 1049, Madgwick J [6]. It is lawful to dismiss an employee for misconduct when there is a clear intention the employee chooses no longer to be bound by the contract of employment. Serious misconduct and repudiation are two sides of the same coin: Carter v Dennis Family Corp [2010] VSC 406, Habersberger J [43].
16 It is however only in exceptional circumstances that a single act of misconduct would justify summary dismissal: North v Television Corp Ltd (1976) 11 ALR 599. It is reasonable to interpret the expression 'misconduct' as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment: Sent v Primelife Corp Ltd [2006] VSC 445 Mandie J [17]; Adami v Maison de Luxe Ltd [1924] HCA 25; (1924) 35 CLR 143.
17 In Re Dismissal of Union Delegates at Homebush Abattoir, Cook J said (380):
[T]he question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike at an essential element in the contract of service, namely, obedience to the lawful commands of the employer and the right of the employer to enforce discipline.
18 The employer's reason to terminate employment will be valid if it is sound, defensible or well-founded: Andrews v Ian Rollo Currie Nursing Home Old Colonists Society (1997) 41 AILR 3-535.
19 If the employee's conduct falls short of serious misconduct the employer is in breach of the contract if it summarily dismisses the employee. The evidentiary burden is on the employer. Serious misconduct is not required to be proven to the criminal standard however given the serious nature of the allegation the principles enunciated in Briginshaw v Briginshaw apply. An evidential burden does not require the person upon whom it lies to establish anything. It imposes an obligation to show that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue: Shire of Esperance v Mouritz(No 1) (1991) 71 WAIG 891, 895 (Kennedy J).
Background
20 Eleven witnesses were called to give evidence and one witness statement was received by consent. Witnesses did their best to recall matters truthfully and accurately. The only issues of credibility related to Ms Bingham, Mr Cooper and Ms Jackson.
21 St John Ambulance Western Australia Limited is part of a federated national body that operates ambulance services in Western Australia and the Northern Territory and is a provider of first aid training, first aid services at public events and a supplier of first aid kits and equipment. St John Ambulance Western Australia Limited operated as St John Ambulance WA (Inc) until 30 September 2013.
22 Mr Ahern, the CEO of SJA estimates the total SJA 2008/2009 budget was approximately $120 million. In 2009 SJA's main contract was with the Western Australian State Government for the provision of ambulance services, however, SJA also received funds from donations, Lotterywest and private subscriptions. Mr Ahern said that as a result of its charitable status there was an expectation that SJA would operate lawfully and comply with the Australian Taxation Office's directions. He said that SJA must not be seen to be acting extravagantly in the public eye. An investigation challenging the charitable status of the organisation would be damaging. There was also an expectation that accredited first aid trainers would comply with the accreditation standards imposed because of its status as a registered training organisation.
23 Ms Horskins, the manager of trainer accreditation in 2009, confirmed that trainers with SJA had to follow the trainer accreditation processes to ensure that SJA met the standards set by its governing body Australian Quality Training Framework in order to be a registered training organisation. The pre-requisites at the time were a Certificate IV qualification in Workplace Training and Assessment, a current first aid certificate and a police clearance.
24 In 2008/2009 the structure of SJA was that it ran a head office in Belmont and, given the needs of those in remote and regional Western Australia, it also ran 110 sub-centres that provided services in 160 locations. Most of the sub-centres ran on voluntary staff. Paid officers and staff were employed in Belmont and in locations such as Bunbury, Harvey and Albany.
25 The Karratha sub-centre was established pursuant to the delegated authority of SJA. It was a large operation and employed an office manager, and from 2007, an administrative assistant. As the Karratha sub-centre office manager, Ms Bingham was answerable to the regional manager for the Pilbara and Great Southern, Mr Wilson. He in turn reported to the country manager who reported to the ambulance service director, one of seven directors who ultimately reported to the CEO, Mr Ahern.
26 The human resources director, Ms Jackson, supported the whole of the organisation.
27 A board of management oversaw the governance of SJA, however, every sub-centre operated under the guidance of a committee of volunteers. The committee members were co-opted by the sitting committee in those regional areas that relied solely on volunteers. However, given the size of the Karratha sub-centre and the fact that paid staff worked at the site the Karratha committee members were chosen by SJA through head office. In 2009 the Karratha committee members were Mr Seaman (chair), Mr Creighton, Ms Wilkinson and Mrs Roz Tritton. The regional manager Mr Wilson was an ex officio committee member and Ms Bingham as office manager was the committee secretary. It was Ms Bingham's role to provide financial and operational information to the committee and to answer the committee's queries at its monthly meeting.
28 The provision of first aid training operated independently of the ambulance service. In 2009 SJA provided first aid training to a large number of people in Western Australia. Although the number for 2009 was not given in evidence by 2013 220,000 people were taught first aid annually and 100,000 of them were taught at no charge as part of SJA's community service activities.
29 First aid trainers were employed on a casual basis. Once they were accredited with SJA and listed on the payroll through the head office they were entitled to carry out courses on behalf of SJA. Following the provision of a course the accredited trainer lodged their signed claim form for the work performed with the payroll division of the head office. In the Karratha sub-centre this report was also signed off by the office manager before lodgement. Trainers were paid an hourly rate of approximately $33 which was approximately $5 more per hour than the rate that applied to those providing training below the 26th parallel consistent with the SJA enterprise agreement.
30 Mr Wilson said that Ms Bingham was involved in seeking a higher rate of payment for those above the 26th parallel. Ms Bingham confirmed that she was aware of the hourly rate that applied to the SJA enterprise agreement. Payroll at head office paid the accredited trainer a net sum, deducting the tax that applied to the total calculated on the hourly rate.
Ms Bingham's conditions of employment and competency
31 After a number of months as a temporary office manager, Ms Bingham was employed as the full-time office manager at the Karratha sub-station on 13 October 2004. Her contract of employment was comprised of a number of documents. It is agreed these included:
1. Conditions of employment dated 13 October 2004 attached to SJA's letter offering Ms Bingham employment dated 7 October 2004.
2. Karratha sub-centre job description office manager form signed by Ms Bingham dated 10 November 2006.
3. Administration and support services SJA certified agreement 2003 – 2005 (which was superseded by the SJA administrative and support services collective workplace agreement 2006 - 2008).
4. Performance management guidelines SJA dated 15 August 2000.
5. Employee counselling and discipline policy SJA reviewed 30 June 2006.
6. Sub-centre information folder SJA dated March 2004.
32 Other documents such as the Treasurer's Handbook and Guides for Voluntary Sub-Centres and Committees provided guidance in respect of SJA policy and procedure however not all of the matters included in the documents were relevant to Ms Bingham's role as office manager at the Karratha sub-centre.
33 Ms Bingham entered into an agreement with SJA to perform services as an industrial medic on 13 April 2006.
34 On the same date she also entered into an agreement of employment with SJA as an accredited first aid trainer. These two roles co-existed with her role as office manager and her work as a voluntary ambulance officer.
35 Ms Bingham was paid her salary as office manager and received additional payment for any work performed as an industrial medic or a first aid trainer. All payments to her for medic and training work were calculated and issued by the payroll section of the head office of SJA following lodgement by Ms Bingham of the relevant signed timesheet setting out the dates and hours worked.
36 During her employment Ms Bingham had a good working relationship with the Karratha sub-centre committee members, a number of whom were volunteer or casual workers with whom she shared friendship and employment.
37 Ms Bingham described the sub-centre as being extremely busy, a view shared by all officers and committee members who gave evidence and who were involved with the Karratha sub-centre, because of ambulance demands and the requirement for first aid training from employees of mining companies and related businesses.
38 Ms Bingham denied receiving any training when she started in the role of office manager. However regardless of the level of training she received she was competent in her role as office manager. The regional manager Mr Wilson spoke highly of her skills and competency. Mr Wilson commenced as regional manager in 2007, three years after Ms Bingham commenced as full-time office manager. He described Ms Bingham as being efficient and he believed she was good at carrying out her role. Mr Wilson developed a good working relationship with her and would speak to Ms Bingham on the telephone regularly. He attended monthly meetings when he first commenced as regional manager. By 2008 he was attending the Karratha committee meetings on a bi-monthly basis.
39 Ms McKay, who was Ms Bingham's full-time administrative assistant and a paid employee of SJA from late 2007 considered Ms Bingham's office skills and her performance of her role as office manager to be of the highest standard. Ms McKay spoke of Ms Bingham's dedication to the provision of SJA's services in the Pilbara.
40 Members of the Karratha committee considered Ms Bingham to be knowledgeable and competent in the provision of information on finances and SJA policies and procedures at committee meetings. She answered questions in respect to financial details competently and clarified financial information and SJA practices when the committee sought guidance.
41 Mr Wilson stated that although he did not audit the Karratha sub-centre finances nor seek a breakdown of the financial reports his involvement with sub-centres in the Pilbara and Great Southern was such that he could identify anomalies in the expenditure of a sub-centre from examining the financial papers provided to the committee at its meeting. He was not aware of any anomalies prior to 2009.
42 A document that forms part of Ms Bingham's contract of employment, the job description form (JDF) sets out key areas, key tasks, the performance level required and by whom the task is to be monitored. The key task of the key area of finance included:
To manage and undertake duties to ensure the sub-centre's finances, property and related matters are completed in accordance with the sub-centre manual or as directed by the accountant – country region'. The performance level required is 'the financial and administration needs of the sub-centre are carried out to a high standard, as outlined in the sub-centre manual or as directed by the accounts department'.
The reporting requirements are met and the reports are available for the accountants – country region on request.
43 The key tasks in the area of finance were to be monitored by the accountant – country region, regional manager, management committee and customers.
44 In relation to the key area of first aid services and training the JDF set out as a key task that Ms Bingham was to maintain all administration records of trainers and their students. The performance level required included:
compliance with relevant legislation etc. Ensure timesheets are accurate and all trainers are paid in accordance with relevant agreement.
All class rolls are accurate, classes are graded, integrity of the system is maintained.
45 The key area of first aid services and training was to be monitored by the accountant – country region, regional manager, management committee and manager of first aid services and training.
46 The key area relating to statutory matters listed the key task as 'To ensure that the sub-centre is operated in accordance with the sub-centre country manual'. The performance level required was 'when all statutory requirements of the sub-centre are carried out in accordance with the organisation's requirements as stated in the sub-centre country manual'.
47 This was to be monitored by the accountant – country region, regional manager and management committee.
48 The key area of leadership set the key task of 'Lead by example in professional and ethical conduct'.
49 The key areas of budget required the preparation of an annual budget, monitoring of its performance and recommending corrective action where possible. Ms Bingham said in evidence she did not prepare an annual budget nor was it required of her by the accountant country region, regional manager or management committee who are the named monitoring agents listed in the job description form.
50 The key area of planning required Ms Bingham to develop and maintain a three-year plan for the Karratha sub-centre. It does not appear that this was carried out by her nor had the nominated monitors required her to prepare a three-year plan prior to 2009.
51 Mr Cooper, the accountant – country region, gave evidence that Ms Orkram who was an employed office manager from a major sub-centre in Albany had been directed to go to Karratha in order to reconcile the accounts in late 2008 early 2009 because Ms Bingham had not carried out the task of reconciliation. Mr Cooper said that no reconciliation occurred after Ms Orkram left Karratha and before Ms Bingham was suspended.
52 Although Ms Bingham asserted that she was unaware of the policies, particularly the contents of the sub-centre procedure manual, Mr Wilson, the regional manager said in evidence in response to the following question (ts 378):
Is your expectation of Ms Bingham's performance as office manager that she should have been aware of [the sub-centre procedure manual] and knew what its contents were? --- I believe Marie would have had an awareness of the document.
Yes.
53 Ms Bingham stated she was not aware of the established procedures and protocols contained in the documentation the subject of her contract nor had she received specific training in respect of the procedures and protocols relevant to the delivery of training services and remuneration. However, Ms Jackson, director of human resources considered that the framework for employing people and paying people at SJA was very clear.
54 Ms Horskins the training coordinator had had discussions with Ms Bingham in 2009 when Ms Bingham contacted trainer accreditation on several occasions to ask questions so that she understood the process of accrediting trainers for the Karratha sub-centre. It was Ms Horskins' impression from those discussions that Ms Bingham was familiar with the accreditation requirements for first aid trainers in 2009 (ts 689). Ms Horskins said Ms Bingham contacted training accreditation on several occasions in 2008 or 2009 to be able to be guided on the process of accreditation for paid and volunteer trainers. Ms Horskins had not spoken to Ms Bingham personally in respect of each and every query but was aware that her administrative assistant Ms Reardon had done so.
55 For reasons I will set out later, I accept the evidence of Mr Cooper, accountant-country region in relation to Ms Bingham's training. Mr Cooper doubted very much that Ms Bingham had never received a moments training. (ts 743). He considered it would have been very, very unusual and very unbelievable had she failed to receive any training at all. He recalled he had gone to Karratha when he was part of the country accounts team before his promotion which was a year or two before Ms Bingham's suspension. He had run through the financial system with her showing her how it worked and what was required. He recalled being in Karratha on a training mission to see how Ms Bingham was going and said he answered queries from her however he had not carried out a formal audit. He said (ts 744): 'We like to check that people are on the right path before we actually do a formal audit'. Specifically, Mr Cooper said in respect of his training of Ms Bingham that there was nothing that led him to believe that she did not understand bookkeeping or accounting principles. He said (ts 770):
… we have a number of people, particularly in subcentres, that aren't paid. A volunteer has no understanding of bookkeeping when they start - - -
- - - so we actually go through the process and – and showing them our basic requirements. So it's no different than if you have a paid person, might have a qualification for everything else bar the basic accounting within - as a paid office manager because there's many other duties like booking first aid courses and selling first aid kits and attending to general queries and things like that.
56 Nothing led Mr Cooper to believe that Ms Bingham did not understand the relevant financial procedures.
57 Ms Bingham had not been the subject of previous warning or discipline.
Ms Bingham's conduct
58 Ms Bingham admitted making payments contrary to SJA procedure and policy in her capacity as office manager. The payments were:
1. Lump sum payments made to casually employed accredited first aid trainers. The sums were not calculated according to the agreed rate of pay for the first aid trainers in accordance with the SJA enterprise agreement.
2. Lump sum payments to non-accredited/unregistered people who conducted first aid training or who were mentored at first aid training.
3. Lump sum payments made to herself for conducting first aid training when she was being paid for the same time period in her position as office manager.
4. A lump sum payment made by Ms Bingham to her daughter who was not on the SJA payroll for the performance of archiving work at the sub-centre.
Lump sum payments – accredited first aid trainers
59 The rates of pay for registered accredited first aid trainers had been negotiated and were set out in the collective agreement. Payments had to be made in accordance with the rate set and Ms Bingham was aware of the rates of pay because she had been involved in negotiating for the higher rate, she was an accredited first aid trainer herself and it had been her role to countersign the forms setting out first aid trainers' billable hours prior to the document being sent to payroll at Belmont head office for payment. She knew head office deducted tax from the sum before the trainer was paid.
60 The demand for first aid training in the Karratha area in the latter half of 2008 was very high because a number of employers required their employees to complete first aid training in order to comply with occupational safety and health requirements. Large corporate clients including Rio Tinto Pilbara Iron Railway sought first aid training for its employees. As office manager of the Karratha sub-centre Ms Bingham found it difficult to arrange for casual first aid trainers to meet the demand for training. Casual first aid trainers were required to provide their training services exclusively for SJA however the trainers, including Ms Bingham, all had other positions of full-time employment. This made it difficult for trainers to arrange to have two consecutive days off from their main employment in order to teach the first aid courses as required. It also meant that the casual trainers were taxed at a higher rate on the sum that was paid by SJA through payroll than casual trainers who did not have separate full-time positions of employment.
61 On 30 September 2008 Ms Bingham sent an email to Mr Wilson, regional manager, in relation to contract trainers:
Hi Ashley
As you are aware we have several new trainers being accredited in October, all of whom who have jobs elsewhere, meaning when they train for us they will be taxed as a second job.
In order to make training as a second job attractive, I am wondering if we can set these trainers up as 'contractors' rather than casual employees. In considering this proposal please take into account the following points:
• no payrolling service required – contractor would invoice sub-centre;
• contract rates negotiable, which would include superannuation etc;
• contractor responsible for own tax;
• contractor able to off-set expenses against income for taxation purposes, ie, laptop, car, home office or % tax deduction;
• contractor still training under SJA banner not acting as 'retail' trainer.
I believe this gives the sub-centres protection, whilst offering trainers an opportunity to provide the training for the sub-centre for mutual reward.
I look forward to hearing your thoughts on the matter.
Marie Bingham
Office Manager, Karratha Sub-Centre
62 Mr Wilson forwarded the email to Mr Smith and Ms Faull, employees of SJA. Mr Wilson said:
Anthony
Please see attached email from Marie Bingham in Karratha. Her suggestion could be seen as just another version of a retail trainer, but it does have some subtle differences. Is this something we could explore?
Regards
63 Ms Faull responded to Mr Wilson on 14 October 2008 and said:
Ashley
Sorry for not getting back to you earlier regarding Marie's email. Whilst Marie has offered some suitable solutions for consideration at this point in time we would be hesitant to introducing a new process of employing trainers within our regional areas. I will give Marie a call and let her know.
If you require any further information please don't hesitate in contacting me.
Kind regards
Kirsty
64 Mr Wilson forwarded the email trail to Ms Bingham on 15 October 2008 and wrote:
Marie, for your info.
Regards
Ashley
65 Ms Bingham was therefore aware that no changes were to be made to the way SJA trainers were paid.
66 In late 2008 Ms Bingham negotiated with the Rio Tinto Iron Ore Railway Division to provide a two day first aid training corporate course to them for a flat fee of $3,000. She then suggested that SJA should pay the corporate course trainer a lump sum of $1,000 for the two days to 'make it worth their while putting themselves out for us' (ts 67). Although there is no evidence she discussed the reason why she considered $1,000 appropriate nor is there any evidence, note or memorandum in relation to how this sum came to be quantified Ms Bingham said in evidence that the alternative was to fly trainers up from Perth which would have cost about $700 at least for airfares, $250 per night for accommodation and they would need three nights, hire car, meals, accommodation. She said (ts 67):
So obviously it was going to be far more beneficial to the local subcentre to pay the trainers $1,000 - local trainers $1,000 to do the course than it would be to fly trainers up from Perth.
67 Ms Bingham proceeded to pay the trainer who conducted the Rio Tinto Iron Ore Railway Division courses a lump sum from the sub-centre's bank account. She stated in evidence-in-chief that she spoke to John Seaman. She said she also spoke to Tracey Wilkinson and Roz Tritton who were both on the committee. Ms Bingham said she telephoned Mr Wilson in late 2008 prior to commencing the lump sum payments however he was busy as a result of a bus crash and said he could not speak to her at that time. She did not speak to him about her decision to pay lump sum payments at all prior to her suspension.
68 In evidence-in-chief Ms Bingham said (ts 67): 'So in my mind the majority of the committee had agreed to my suggestion'.
69 There is no evidence of minutes or records of the committee in respect of an agreement for lump sum payments. Mr Seaman said in a letter provided to Mr Wilson during the course of the suspension investigation and also in evidence that he was aware that lump sum payments had been made. He was however not aware that the payments had not been approved by Mr Wilkinson. Mr Seaman said he would not have agreed to lump sum payments had he known that Mr Wilson would oppose them.
70 Mr Creighton said in an email to Mr Wilson dated 1 April 2009 (exhibit D140, tab 24):
In regard to our conversation on the evening 23rd March 2009, I do not recall getting a phone call from the Karratha office staff about extra payments for first aid trainers in the period between December to January.
71 Ms Bingham led evidence of a letter from Ms Wilkinson to Mr Wilson dated 6 April 2009 (exhibit D143, tab 26). Ms Wilkinson referred to a telephone call with the office manager (Ms Bingham) prior to Christmas 2008 regarding several corporate first aid courses that had been requested by Rio Tinto over a designated period of time. She did not recall the exact date of the conversation. She said:
This discussion also involved rates of charges to Rio Tinto being additional to the usual charge due to the past dealing with this company and in turn a lump sum payment in the vicinity of $1,000 to the trainer for each course in order to get commitment from trainers to run these courses taking with consideration to the quantity of courses requested and the lack of trainers available to run them.
I also received a further telephone call after Christmas, the exact date I do not recall, when the office manager St John Karratha sub-station advised she was simply contacting committee members to confirm regarding the above. Discussion also included as to the difficulty still finding trainers to commit to these courses requested by Rio Tinto and the lack of trainers presently available to run them.
72 Ms Wilkinson does not refer in her letter to having any knowledge of the attitude of SJA head office or Mr Wilson to Ms Bingham's proposal.
73 Counsel for SJA submits if Ms Wilkinson was in a position to give evidence to the effect that she would have approved lump sum payments without reference to head office then she would have been called as a witness on Ms Bingham's behalf. Given Ms Wilkinson was not called as a witness I should infer Ms Wilkinson's evidence in respect of knowledge of SJA would have been unfavourable to Ms Bingham on application of the rule in Jones v Dunkel (1959) 101 CLR 298.
74 The rule in Jones v Dunkel provides that the 'unexplained failure by a party to give evidence or to call a witness or tender certain documents may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party's case: Jones v Dunkel (298, 308, 312 and 320 - 321); Mills v Downer EDI Engineering Projects Pty Ltd [2011] WADC 82 [146 - 151].
75 Owen J in Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239 said the rule in Jones v Dunkel is grounded in common sense [1001].
76 Owen J said [1017]:
In order for the principle to apply, the evidence of the missing witness must be such as would have elucidated a matter … It is not enough to conclude that a party may have knowledge. Unless the tribunal of fact concludes, on the balance of probabilities, that the missing witness would have knowledge, there is no basis for an adverse inference from the failure to call the witness.
77 Applying the Jones v Dunkel principle I am not in a position to conclude on the balance of probabilities that Ms Wilkinson was not called as a witness because she knew SJA had not approved lump sum payments or payments to unaccredited trainers. The evidence is that Ms Wilkinson and Mr Seaman were spoken to by Ms Bingham but not at a committee meeting. There is no evidence that Ms Wilkinson was aware of the view of SJA nor is there evidence that Ms Wilkinson was prepared to act on her own volition without approval from SJA.
78 Mr Wilson is very clear in evidence that he was never asked nor was he aware of a proposal to pay a $1,000 lump sum. He said:
I suppose I keep on going back to the thought of if there was a dollar amount that to me as in the financial dollars that that would have been a spark of perhaps … help me remember the conversation as well as obviously putting a stamp of – of no on it (ts 387).
79 I accept Ms Bingham may have telephoned Mr Wilson once prior to Christmas 2008 however I do not accept that she intended to obtain permission from him or from SJA head office prior to making lump sum payments to trainers. Ms Bingham was aware that SJA did not want to follow her proposal to have trainers paid off the payroll because she received the email dated 15 October 2008 rejecting that proposal. Ms Bingham regularly spoke to Mr Wilson from 2007 onwards. Between mid-December 2008 and February 2009 she had ample opportunity to contact Mr Wilson by telephone, email or fax and she could have contacted any other member of the accounts team or senior management in the event that Mr Wilson was repeatedly unavailable. There is however no evidence that Mr Wilson was unavailable. Ms Bingham did not attempt to obtain permission from SJA to make lump sum payments because she was aware that lump sum payments were not authorised. Ms Bingham was aware that lump sum payments to first aid trainers were contrary to SJA practices in February 2009.
80 In February 2009 due to a cyclone the Rio Tinto Iron Ore Railway Division staff were not able to work on site. The company requested that a number of first aid courses be run at short notice so that employees who could not work on site could use their time to obtain the required first aid qualifications.
81 It was as a result of this request that Ms Bingham arranged for Mr Head, an experienced ambulance volunteer but an unaccredited first aid trainer who had not fully completed the certificate for qualification, to conduct a regular SJA course. Ms Bingham also offered accredited trainers the lump sum $1,000 payment in order to carry out courses for the Rio Tinto Iron Ore Railway Division. Ms Bingham also advised Ms Wilkinson and Ms Waterstrom-Muller (who was not an employee) that they would be paid for sitting in on first aid courses as mentorees. Neither was registered with SJA as an accredited trainer at the time.
82 Ms Bingham recorded the lump sum payment she made to the trainer she appointed in the general ledger of the Karratha sub-centre bank records. Both she and Ms McKay were required to enter personal PIN numbers in order to make any payment from the general ledger (an electronic form of a countersignature) however due to the demands on her time Ms Bingham gave Ms McKay her personal PIN number so that Ms McKay could make payments in Ms Bingham's absence. Although the payments may have been authorised by Ms McKay it is not disputed that they were made with the authority of Ms Bingham because no evidence was led from Ms McKay when she was called on behalf of Ms Bingham that she had acted contrary to Ms Bingham's instruction. Although Ms McKay and perhaps other SJA employees processed the payments they should not have been subject of adverse attention because they were acting on Ms Bingham's instructions.
83 It was clear to Mr Cooper on examination of the records that lump sum payments had been made, when and to whom and Ms Bingham did not deny making lump sum payments without reference to the agreed SJA rates or processes when questioned by Mr Wilson and Ms Gordon-Blowers on 8 April 2009 (file note dated 7 April 2009, exhibit D, tab 28). Accordingly, Ms Bingham was responsible for making lump sum payments with no tax deducted to accredited registered trainers as follows:
1. General ledger payment for PI course made to Graeme Tritton for $1,000 dated 2 February 2009 (sup-tab 22).
2. General ledger payment for Course 9270027 made to Graeme Tritton for $300 dated 26 February 2009 (exhibit D, tab 12, page 90, tab 39 pages 212, 215, 224, 230 and sup-tab 7).
3. General ledger payment for Course 9270025 made to Graeme Tritton for $1,000 dated 26 February 2009 (exhibit D, tab 12, page 91, tab 38 page 205, tab 3 pages 213, 217, 224 and 230, sup-tab 8).
4. General ledger payment for Course 9270014 made to Graeme Tritton for $1,000 dated 26 February 2009 (exhibit D, tab 12, page 92, tab 38 page 206, tab 39 pages 213, 215, 224 and 230, sup-tab 9).
Payments to trainers who were neither registered nor accredited
84 Ms Bingham was aware that first aid trainers had to be registered and accredited. She knew payment was facilitated by payroll in the Belmont head office in respect of casual employees who became casual employees once they were accredited. She herself was accredited as a first aid trainer and was well aware of the requirements. Ms Bingham knew that in order to be accredited a Certificate IV qualification had to be completed. There was no challenge to the evidence of Ms Horskins that in 2008/2009 a current first aid certificate and a police clearance were also required. Payments were made at Ms Bingham's direction to unaccredited trainers and mentors who she knew to be unaccredited and who were not employees of SJA as follows:
1. Course 9270014: course run 19 – 20 February 2009 conducted by Graeme Head who was not employed nor accredited (sup-tab 9). I accept the evidence that two courses were confused and Mr Tritton conducted Course 9270013 for which Mr Head was paid $1,000 on 26 February 2009 (exhibit D, tab 12, pages 95 – 98, tab 39 pages 213, 215, 224 and 230, tab 41, tab 42, sup-tab 1).
2. Although Mr Head had partially completed the required course a letter from Pivot First Aid Solutions dated 14 March 2008 confirmed he had not fully completed the qualification. Ms Bingham was aware Mr Head was not fully accredited and was yet to complete his certificate IV training course when she engaged him to conduct a first aid course and paid him the lump sum of $1,000.
3. Mr Tritton's accredited trainer number was used next to the name of Mr Head. Mr Tritton said that he did not run the course because he was engaged in other activities at the sub-centre at the time however he conducted the final testing of attendees and signed their accreditation as having successfully completed the first aid course.
4. Course 9270019: course run 19 – 20 February 2009 conducted by Graeme Head. General ledger payment of $660 was made on 26 February 2009 (exhibit D, tab 12, pages 99 – 102, tab 38 page 203, tab 39 pages 213, 215, 224 and 230, sup-tab 2).
5. Course 9270022: course run 26 – 27 February 2009 and conducted by Tracey Wilkinson who was not registered with SJA. Ms Wilkinson was paid part of a lump sum payment for attending three courses as part of mentoring. A total sum of $630 was paid on 26 February 2009 (exhibit D, tab 12, pages 103 – 104, 105, 106, tab 31 page 204, tab 46 page 231, tab 39 pages 213, 215, 224 and 230, sup-tabs 3 – 5).
6. Course 9270029: course run 26 February 2009 conducted by Tracey Wilkinson. Part of the total of $630 paid for Ms Wilkinson attending as the mentoree at this course.
7. Course 9270009: course run 9 February 2009 conducted by Tracey Wilkinson. Part of the total of $630 paid for attending three courses as the mentoree.
6. General ledger payment for PI course to Tracey Wilkinson of $1,000 dated 2 February 2009 (exhibit D, tab 12, page 86, sup-tab 21).
7. General ledger payment of $500 to Ms Waterstrom-Muller on 26 February 2009 for attending as a mentoree when she had not completed the requirements for accreditation and was not employed by SJA.
Payments made to Ms Bingham
85 Ms Bingham paid herself two lump sums of $500 drawn from the Karratha sub-centre general ledger for conducting first aid training courses 9270028 and 9270015 (exhibit D, tab 12, pages 93 – 94, tab 38 page 207, tab 42, tab 39 pages 212, 215, 223, 224 and 230, sup-tabs 10, 11 and 17).
86 Ms Bingham knew she was being paid as office manager for the hours she conducted the first aid training courses for the Rio Tinto Iron Ore Railway Division (because the course times coincided with office hours). Ms Bingham said she said she 'felt entitled to be paid extra for that' (ts 248). She did not seek approval from SJA to be paid any sum additional to her office manager salary. She paid herself by way of lump sum and did not lodge a pay claim with payroll in Belmont knowing that a failure to do so was contrary to SJA practices and procedures. Although Ms Bingham said she returned to the sub-centre office after she completed the training course for Pilbara Iron that started at about 6.00 am each day she did not disclose to SJA that she had been absent from her role as office manager until 3.00 pm on the training days nor did she disclose her reasons for absence to SJA. SJA believed at the time of dismissal that Ms Bingham was on leave when she conducted the courses. She was in fact receiving payments for both her full-time position that she was required to perform and for running the first aid courses. Ms Bingham may have carried out first aid work during her core office hours in the past but there is no evidence she had previously been paid twice for the same period. Ms Bingham did not have permission to pay herself a lump sum from the general account. She did not deduct any tax from the payment she made to herself. Ms Bingham did not disclose the payments to the committee. Although the committee did not have a meeting from December 2008 until 30 April 2009 there is no evidence Ms Bingham made any effort to have payment approved out of session knowing SJA did not approve the payment on the facts known to the committee members. It is clear from perusal of the accounts and documents held by the Karratha sub-centre that Ms Bingham paid herself the cash sums.
Payment to Jodi Bingham
87 Ms Bingham made a lump sum payment of $500 from the Karratha sub-centre funds through the general ledger to her daughter Jodi Bingham on 10 December 2008 in respect of archival work carried out by her daughter at the Karratha sub-centre.
88 No invoices were issued by Ms Jodi Bingham for the work performed and Jodi Bingham was not an employee of SJA. No evidence was led as to whether the administrative assistant Ms McKay was available to carry out archiving work nor was there evidence of any inquiries made by Ms Bingham with SJA head office in respect of the availability of other employees who may have carried out the work. No permission was sought from SJA and no approval was given for Ms Jodi Bingham to be employed.
89 I accept Ms Jodi Bingham was experienced in archiving and that she carried out the archiving work as directed, however Ms Bingham had no authority to pay her daughter $500 gross from the sub-centre general account. Counsel for Ms Bingham argues, consistent with Ms Bingham's evidence, that it is equivalent to a payment for gardening or minor repairs that would come from petty cash. I do accept this because SJA policy was that an invoice and an ABN/tax file number was required from all sub-contractors before they were engaged. There is no evidence of any other payments of relatively large sums equivalent to this payment were being made without an invoice and ABN/tax file number being recorded.
Suspension and dismissal documentation
90 On 18 March 2009 a letter setting out the allegations of serious misconduct signed by Mr Ahern was sent to Ms Bingham. The letter stated (exhibit D13):
Dear Marie
RE: ALLEGED SERIOUS MISCONDUCT
St John Ambulance Australia (Western Australia) Inc. ('SJAA') has become aware of serious misconduct allegations against you, which require an investigation.
The periods in which these specific concerns have occurred are between the 1st January 2009 and the 28th February 2009 inclusive.
The alleged concerns are as follows:
• Allegedly registering a First Aid Trainer's number against a course, other than that of the trainer conducting the First Aid Course(s). (4 counts)
• Allegedly making payments to those trainers who are not employees of St John Ambulance. (4 counts)
• Allegedly making payments to employees and those not employed by St John Ambulance above that of the award for those courses. (5 counts)
• Allegedly making payments to you for conducting First Aid Training Courses direct from Sub Centre funds, instead of submitting a First Aid Trainer pay claim form. (2 counts)
These allegations fit into the following categories:
• Alleged serious breach of company policy under the Performance Management Guidelines.
• Allegedly making payments to persons outside the established payroll procedure.
• Allegedly submitting fraudulent information.
Under the Performance Management Guidelines these allegations constitute serious misconduct and a thorough investigation will be carried out. Therefore, you are relieved from your duties immediately on full pay pending the outcome of the investigation.
You are required to submit a written response within 10 days. However, as part of our investigation, we will be in contact with you to arrange a meeting to discuss your responses to the allegations.
You are assured that SJAA will investigate the allegations fairly. You will be given an opportunity to explain your version of events and to provide us with any additional relevant information. You will also be given the opportunity to have a representative in attendance at any meeting with you regarding the investigation.
Please note that during this investigatory period you are bound by the following terms:
1. You are relieved from carrying out all duties and you are required to remain away from work until further notice.
2. You must not attend your place of work or any other SJAA premises unless you have written permission from SJAA Executive Team in advance.
3. You must not communicate (either in person or by telephone) with any SJAA employee to discuss your situation, unless you have received written permission from SJAA Executive Team in advance. However, we confirm that you may consult a representative at any time.
4. You must make yourself available for any meeting arranged as part of the investigation. We will be hoping to meet with you and your representative should you wish to bring one, on Monday the 23rd March 2009 at 2pm.
If at any time during or at the end of the investigation or during the disciplinary procedure, if it is invoked, it is considered that you can return to full duties, you will be informed and asked to return to your normal duties immediately. If the matter proceeds to a disciplinary hearing under the disciplinary procedure, you will be given advance notice of the date time and place of that hearing and full details of the matter or matters to be considered.
If you have any queries regarding these arrangements, please do not hesitate to contact Ashley Wilson, Regional Manager on 0429 938 248.
Yours sincerely
Tony Ahern
CHIEF EXECUTIVE OFFICER
91 When Ms Bingham received the letter she requested further information from Mr Wilson. Mr Wilson corresponded with Ms Bingham by email on 18 March 2009, 21 March 2009 and 22 March 2009. Mr Wilson sent Ms Bingham responses to her queries including a copy of the First Aid Trainer's Agreement (exhibit D, tab 16, page 24) and a document titled 'Karratha Investigation: Index of Supporting Documentation' that Mr Wilson said in evidence accurately set out the allegations. The allegations on the Karratha Investigation Index document are consistent with my findings in respect of the payments made. The Karratha Investigation Index document does not include the payment made to Jodi Bingham nor does it appear to refer to the total number of payments referred to by Mr Cooper to Roz Tritton. There is no reference to fraudulent conduct in the Karratha Investigation Index document.
92 On 23 March 2009 Ms Bingham met with Mr Wilson, Ms Jackson and Ms Gordon-Blowers to discuss the allegations. Mr Seaman attended as Ms Bingham's support person. There was further correspondence on 25 March and 31 March 2009. On 1 April 2009 Mr Wilson received letters from Mr Seaman and Mr Creighton confirming they knew lump sum payments had been made. The letter from Ms Wilkinson dated 6 April 2009 was also received by Mr Wilson.
93 Correspondence between Ms Bingham, Mr Wilson and Mr Ahern was sent on 8 April, 9 April and 14 April 2009.
94 On 17 April 2009 Ms Bingham attended a meeting at which she was asked if she chose to resign. She chose not to do so. Ms Bingham was summarily dismissed for serious misconduct after declining the opportunity to resign. A letter of termination was issued to Ms Bingham on 17 April 2009 (exhibit D29). The letter relevantly said:
Dear Marie
Ref: Termination for Serious Misconduct
Further to a meeting held with you on 17 April 2009, this letter is to confirm that your employment and all activities related to St John Ambulance Australia (Western Australia) Inc. was terminated on 17 April 2009 as a result of serious misconduct.
As discussed with you the reason for your Termination was due to the following [breaches] in policy and procedure which relate to;
• Registering a First Aid Trainer's number against a course, other than that of the trainer conducting the First Aid Course, this breaches your Job description in relation to First Aid Training & Services, in maintaining all training records for the integrity of the system. This also breaches the First Aid Trainer Policy and Procedure Manual 2005 Section 5.2.1 Titled; Course Registration part (d).
• Making payments to trainers who are not employees of St John Ambulance, which breaches SJAA payroll processes and procedures as well as Flowchart FC03 Titled; Recruitment.
• Avoiding and breaching SJAA payroll processes and procedures by making payments to employees and those not employed by St John Ambulance without processing the payment in the correct manner.
• Making payments to yourself for conducting First Aid Training Courses direct from Sub Centre funds, instead of submitting a First Aid Trainer pay claim form, which breaches SJAA payroll processes and procedures.
122 Had Ms Bingham only breached one policy or procedure or if her actions had not been deliberate then her conduct may have been a matter that could be addressed through training and counselling, however it was the cumulative effect of her breaches together with her decision not to seek permission knowing she was acting contrary to policy and procedure that ensured she was not advised of the full repercussions of her actions. Those actions had a significant potential impact on SJA.
123 The policy states:
Serious misconduct means …
• serious misbehaviour of a kind that constitutes a serious impediment to the carrying out of an employee's duties or to an employee's colleagues carrying out their duties;
…
• conduct that causes imminent and serious risk to the health or safety of a person or the reputation, viability or profitability of the employer's business falls into the category of serious misconduct.
124 I am satisfied that Ms Bingham's conduct caused imminent and serious risk to the reputation, viability or profitability of SJA. Her conduct was not criminal but it was a breach of the terms of the contract that was sufficiently serious to allow summary termination.
4. In the event Ms Bingham did not repudiate her contract what loss or damage has she suffered?
Loss and damage
125 Had I not dismissed Ms Bingham's claim I would have determined her claim for loss and damage as follows.
126 Ms Bingham pleads she had four roles with SJA when she lost her position as office manager because she also lost her positions as a volunteer ambulance officer, a first aid trainer and an industrial medic. She received an annual salary of $61,722 for the office manager position alone.
127 Ms Bingham was unable to find alternative employment that encompassed all of the four roles and she lost the benefit of ongoing professional development in the field of first aid treatment. She also lost ongoing training opportunities in current emergency practice and procedure as a result of no longer being a volunteer ambulance officer.
128 Ms Bingham lost present and future superannuation benefits, accumulated long service leave (which would have been 13 weeks entitlement after seven years of service), the benefit of salary packaging, free ambulance services for herself and her family and the right to access health club membership and weight loss and stop smoking expenses.
129 By amended further amended particulars of loss and damage dated 13 June 2014 Ms Bingham claims her annual salary from the date of dismissal being 18 April 2009 until 30 June 2013. This is a sum (less tax but with superannuation and accumulated long service payment), of $163,242.27. Ms Bingham also claims interest at 6% on the sums being a total of $45,163.
130 Counsel for Ms Bingham asserts that had she received training, guidance and assistance once her conduct that was contrary to policy and procedure came to light then, as a result of her attitude to her employment, her hard work, her commitment and her good relations with the committee, her colleagues and the providers of essential services in Karratha, she would have modified her conduct in order to comply with her contract. There would be no reason for dismissal at all and she would have remained in her position of office manager.
131 I do not accept this. The cumulative effect of Ms Bingham's conduct was that she not only knowingly paid sums contrary to payroll procedure but she also paid unaccredited trainers and people she deemed to be mentorees who were not employed by SJA on behalf of SJA. In regards to her future relationship with her employer, SJA would have been concerned that she paid her daughter $500 without receiving an invoice, or an ABN and without advertising the position or checking with SJA. Ms Bingham also paid herself a total sum of $1,000 for first aid courses that she ran during hours that conflicted with her hours of employment as office manager. She failed to disclose these payments to her employer or to seek permission to receive both sums at the same time. She ensured the payments she made were made directly and not through payroll and were therefore not subject to scrutiny by the payroll division.
132 Given her conduct, I do not accept that the relationship between Ms Bingham and SJA could have proceeded in such a way that SJA would be confident that Ms Bingham would properly run the Karratha sub-centre without a high level of supervision and scrutiny inconsistent with the nature of the office manager role. I find that even if Ms Bingham was wrongfully dismissed SJA would have, in any event, lawfully dismissed her as a result of her conduct.
133 The way in which damages should be assessed in a case of this type was considered in Gunton v Richmond-upon-Thames London Borough Council [1980] ICR 755; [1981] 1 Ch 448. Buckley LJ said in that case at 469:
Where a servant is wrongfully dismissed, he is entitled, subject to mitigation, to damages equivalent to the wages he would have earned under the contract from the date of dismissal to the end of the contract. The date when the contract would have come to an end, however, must be ascertained on the assumption that the employer would have exercised any power he may have had to bring the contract to an end in the way most beneficial to himself; that is to say, that he would have determined the contract at the earliest date at which he could properly do so: see McGregor on Damages, 13th ed. (1972), paras 884, 886 and 888.
134 Buckley LJ held the servant's cause of action would have arisen when he was wrongfully excluded from his employment. The subsequent acceptance of the repudiation would not create a new cause of action although it might affect the remedy available for that cause of action. The question was for how long the servant could have insisted at the date of the commencement of his cause of action upon being continued by the master in his employment (470).
135 Buckley LJ set out the special features that apply to cases of wrongful dismissal and breach of contract relating to personal service. In summary he set out five features (468):
1. Wrongful dismissal implies it occurs after the employment has begun and so involves an immediate breach by the master of his obligation to continue to employ the servant.
2. A wrongful dismissal is almost invariably repudiatory in character; it is very rarely that there can be an expectation that the master will relent and take the servant back into his service under the contract.
3. The servant cannot sue in debt under the contract for remuneration in respect of any period after the wrongful dismissal because the right to receive remuneration and the obligation to render services are mutually interdependent.
4. The servant must come under an immediate duty to mitigate his damages and so must almost invariably be bound to seek other employment in fulfilment of that obligation; it would be very rarely that he could expect to find other employment or could mitigate his damages in any other way which would leave him free to return to his original employer's service at any moment should the original employer relent. If the servant commences other employment he cannot continue obligations to serve his original employer. The servant must, in those circumstances, accept his wrongful dismissal as a repudiatory breach leading to a determination of the contract of service.
5. In the absence of special circumstances the damages recoverable on the footing of an accepted repudiation must be greater than any damages that could be recovered on the footing of an affirmation of the contract by the innocent party and of the contract consequently remaining in operation.
136 Buckley LJ noted that it was not impossible that in some cases incidental or collateral terms might cause the injured party to want to keep the contract on foot. The present case is not such a case.
137 Given the attitude of SJA and the rulings made in respect of Ms Bingham continuing as a volunteer, I find it would be very difficult indeed for Ms Bingham to go back to work with SJA in any role, be it paid or voluntary.
138 At the time of dismissal in April 2009 the collective agreement applied to Ms Bingham's employment. Clause 19.1 of the agreement provided SJA could terminate her employment by providing the following notice:
(a) during the first year of service: 1 week;
(b) more than one year of service but less than three years' service: 2 weeks;
(c) more than three years' service but less than five years' service: 3 weeks;
(d) over five years' service: 4 weeks.
139 Clause 19.1 also set out that if the employee was aged over 45 and had completed at least two years continuous service with the employer then an additional week's notice would be provided. Given Ms Bingham's employment was for a period of approximately four years six months before dismissal she would be entitled to four weeks' notice (or four weeks' salary in lieu of notice). The giving of notice did not require the employer to offer any dispute resolution period nor to take part in the seven step strategy in light of cl 19.1.
140 The least burdensome performance principle applies to the available damages in Ms Bingham's case. Ms Bingham's entitlement to a sum for loss and damage would be for four weeks' salary at $61,722 per annum plus a nominal sum for the loss she suffered by losing incidental or collateral terms of the contract over the four week period. Interest on the total sum at 6% per annum would apply from the date of dismissal until final orders were made.
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