Griffith University v Leiminer
[2008] FMCA 1045
•28 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRIFFITH UNIVERSITY v LEIMINER | [2008] FMCA 1045 |
| INDUSTRIAL LAW – Breach of Collective Agreement – breaches admitted – imposition of penalty. |
| Building & Construction Industry Improvement Act2005 Crimes Act1914 Workplace Relations Act 1996 |
| Community & Public Sector Union v Telstra Corporation Limited [2001] FCA 1364 Cotis v Pow Juice Pty Ltd [2007] FMCA 140 Flattery v Zeffirelli’s Pizza Restaurant [2007] FMCA 9 Furlong v Australian Workers Union and Ors [2007] FMCA 443 Kelly v Fitzpatrick [2007] FCA 1080 Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Printing & Kindred Unions & Others v Visa Paper Products Pty Ltd (1994) 127 ALR 673 Trade Practices Act v Mobil Oil Australia Limited (1984) 4 FCR 296 |
| Applicant: | GRIFFITH UNIVERSITY |
| Respondent: | MICHELLE LEIMINER |
| File Number: | BRG 1078 of 2007 |
| Judgment of: | Burnett FM |
| Hearing date: | 28 May 2008 |
| Date of Last Submission: | 28 May 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 28 July 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Mr D. Williams |
| Solicitors for the Respondent: | Mr D. Quinn |
ORDERS
That the Respondent having been found to have contravened s.719 Workplace Relations Act is ordered to pay the sum of $500 by way of penalty.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 1078 of 2007
| GRIFFITH UNIVERSITY |
Applicant
And
| MICHELLE LEIMINER |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 13 December 2007 the applicant, Griffith University (the University), applies for the imposition of a penalty under section 719 (1) of the Workplace Relations Act 1976 (WR Act) for breach of a collective agreement. The respondent admits the contravention and breach. The matter proceeded to hearing for the purposes of determining an appropriate penalty.
Background
On 5 February 2007 the respondent commenced employment at the University on a full time basis in the position of Lecturer, Level B in the School of Education and Professional Studies at its Logan Campus.
Prior to her employment the respondent was offered the choice of entering into an Australian Workplace Agreement or a Collective Agreement applying to all the University staff. In her statement of acceptance in response to the offer of appointment dated 15 January 2007 the respondent accepted her appointment under the Griffith University Academic Staff Union Collective Agreement (the Collective Agreement) by checking the box affording her that election.
In accepting the appointment under the Collective Agreement she acknowledged she had read and understood and that she agreed to abide the conditions set out in the offer of appointment which included employment conditions governed in part by the Collective Agreement.
From the moment of her employment the respondent was an employee bound by the Collective Agreement.
The Collective Agreement relevantly provided:
“Part 6 – Cessation of Employment
37 Termination of Employment
37.1 Notice of Termination is termination at the initiative of the University and shall only occur as provided for in this Agreement.
37.2 Notice of Termination by the University
37.2.1 The notice period for termination of employment for a continuing academic staff member, except in the case of serious misconduct, is 6 months.
38 Resignation
The notice of resignation to be given by a staff member is the same as the notice of termination required of the University.
At the discretion of the relevant Pro-Vice Chancellor or Deputy Vice Chancellor, a shorter period of notice may be grated on request of the staff member.
Where a staff member fails to give the required notice, the University has the right to withhold monies due to the staff member, to a maximum amount equal to the ordinary rate of pay for the period of notice.”
The respondent was required by the Collective Agreement to provide six months notice of her resignation unless a shorter period of notice was requested and granted at the discretion of the Pro-Vice Chancellor or the Deputy Vice Chancellor.
On or about 30 May 2007 by a letter of that date the respondent received an offer of employment from Southern Cross University (SCU) to take up employment as a lecturer in early childhood education in the School of Education at the Coffs Harbour Campus of that university commencing on Monday 16 July 2007.
At approximately 2.33pm on 30 May 2007 the respondent forwarded an email to Professor Wyatt-Smith, Dean of the Faculty of Education; Professor Howard Middleton, Head of School; and, Dr. Lindsay Parry, Deputy Head of School advising that she had been offered a position with SCU to commence on 23 July 2007. In her email the respondent requested that Professor Wyatt-Smith meet with her to discuss the offer.
Later that day Dr Parry emailed a reply and arrangements were made to meet at about 3.00pm at Café M28 at the University Mt Gravatt campus. During the course of their discussion she informed him of the proposed commencement at SCU at the beginning of Semester 2.
She also mentioned she believed it was possible to put in place good transitional arrangements at the University for Semester 2.
Significantly Dr Parry informed the respondent of the six month notice period. The respondent says this was the first time she became aware of that requirement.
Following that meeting the respondent drafted her letter of resignation and hand delivered it to Professor Wyatt-Smith’s personal assistant later on the afternoon of 30 May.
In the meantime the respondent proceeded to draft a transitional plan in anticipation of her resignation taking effect on or before 16 July.
On 31 May a meeting was convened between the respondent and Professor Wyatt-Smith, Dr Middleton and Ms Gelena Dekkar from the University’s Human Resources Section. At that meeting Professor Wyatt-Smith confirmed that the University required the respondent to provide six months notice consistent with the Collective Agreement. The respondent was told her resignation would not be accepted (at that time Professor Wyatt-Smith had not received the letter of resignation).
At that meeting Professor Wyatt-Smith informed the respondent that the University could not accept her resignation to take effect on the date before the end of the teaching year because the respondent had an existing commitment to teaching and course convenorship for the second semester which commitments had already been programmed into the academic timetable. The parties discussed means by which the six month notice period could be ameliorated. This included a suggestion that the respondent discuss the commencement date of her employment with personnel at the SCU to see if a new commencement date could be arranged. The respondent was not amenable to this suggestion. In turn she suggested that she could continue to perform her convenorship and teaching responsibilities remotely from off campus after she resigned. This suggestion was dismissed by Professor Wyatt-Smith as unworkable. As a compromise position it was proposed that the respondent might consider an earlier departure date that would enable her to move to SCU before the end of the six month notice period but allowing her to finish working on the Griffith University campus by about the end of October 2007. Ultimately no compromise was achieved.
Following the discussions between the respondent and Professor Wyatt-Smith and Associate Professor Middleton there was discussion between Professor Wyatt-Smith and her immediate superior, Professor McMeniman the relevant Pro-Vice Chancellor.
The discussion between Professor Wyatt-Smith and Profession McMeniman was had by telephone as at the time of that discussion Professor McMeniman was travelling overseas in Italy. Professor Wyatt-Smith briefed Professor McMeniman with the background facts and in particular informed her of that aside from the respondent’s teaching commitments and class allocations for the second semester, the respondent had entered into an arrangement with the University in respect of her teaching load for the first semester. That arrangement permitted the respondent to complete her PhD in the first semester in return for which the respondent was to take up a shortfall in the teaching load in the second semester. On the basis of those matters Professor McMeniman informed Professor Wyatt-Smith that the University could not accept the respondent’s resignation to take effect on a date before the end of the teaching and second semester.
These events caused the respondent some confusion. At paragraphs 34 to 37 of her affidavit she explained her position as follows:
“34. She said that I could take the resignation letter back now. That way if SCU did not agree to waiting 6 months for me to take up the position I would not be without a job. She said words to the effect of she did not want to see me without a job.
35. I was confused about her intention but took this to mean I could be in the situation of having given 6 months notice to GU but then SCU not employment me because a start date of 30 November would be too late for their requirements.
36. I thought this meant that I had no practical option but to accept the SCU proposal to commence when SCU wanted me to at the beginning of Semester 2. Otherwise I thought I might submit my resignation and then find that SCU would not accept a proposal to start in November and I would be left with no job to go to.
37. I was very worried by this statement by Claire and what it might mean. I was the main ‘breadwinner’ for our family and I could not afford to be unemployed.”
Although there is some difference between the witnesses concerning discussions alleged to have occurred on that date about whether or not the respondent was advised of the process for requesting a shorter notice period, nothing turns on that matter. Clearly, irrespective of whether such discussion occurred, the University did not intend to relax the notice period for the respondent and the respondent was aware that the notice period was six months
Likewise the witnesses do not agree on the context of discussion about the respondent conducting further negotiations with SCU or proposals to deal with transitional issues to accommodate some later resignation date. It is common that nothing was agreed between the respondent and the University and that the offer by SCU required the respondent to commence on 16 July 2007.
On 1 June 2007 the respondent received an email from Dr Parry in response to her transitional plan. He confirmed six months notice was required. However he did add that the notice period could be negotiated.
On the same day Professor Wyatt-Smith informed the respondent by email that the University could not accept her resignation to take effect before 30 November 2007 and that she was required to provide six months notice pursuant to the terms of the Collective Agreement. She requested that the respondent liaise with SCU and revert to her with a new date being no earlier than 30 November.
The University’s position would have been unambiguously clear to the respondent following that email of 1 June.
Over the following couple of weeks the respondent was on leave. During this period she was in contact with personnel at SCU. Additionally she was aware that at this time there had been some discussion between SCU and the University. Her initial impression was that although nothing had come of any of the discussions they had been positive.
However by the time of her return to work it was, or ought to have been, plain to her that the University required her to work out her standard notice period. In her affidavit the Respondent noted that on
12 June she had a conversation with Professor Jenny Graham, Executive Dean, Faculty of Arts and Health Sciences SCU. Of that conversation she noted:
“I recall Jenny said that SCU could not become involved or help [her] legally. [She] would need to make a decision and that [she] would be on [her] own.”
On 15 June SCU contacted the respondent and offered her a Level B (Step 6) position. This was an improvement on the initial offer. In her oral testimony the respondent acknowledged that the offer made her feel better about her decision to take up the position. Although it may have ameliorated any lingering doubts that the respondent had about her proposed course of action I do not think it was instrumental in her decision to resign from the University. That decision had been made on 30 May. Later that day she again emailed her employers at the University and confirmed her last day at the University would be
19 July. By inference it was clear she intended to proceed with her resignation and would not serve out her six months notice period.
There were no further formal communications between the parties until 15 June 2007 when the respondent emailed Professor Wyatt-Smith and Associate Professor Middleton to inform them that SCU had just offered her an appointment at level B Step 6 and that she had received advice from the NTEU (being her relevant industrial association).
In her email she stated that she had “decided to take up the position at SCU. My final day at Griffith University will be July 19.”
The University did not accept her notice. By letter of 22 June the Human Resources Director, Miss Walker wrote that “the University would take every available avenue to enforce the requirements of the notice period”. That was subsequently confirmed by correspondence dated 12 July 2007 directed to the respondent by the University’s solicitor.
By letter dated 12 July 2007 the University caused its solicitors to write to the Respondent. They noted that the University would have the right to withhold monies due to a maximum amount equal to the ordinary rate of pay for the period of notice that the respondent failed to provide and also that the failure would render the respondent liable to penalties under the provisions of the WR Act for breach of the termination provisions in the Collective Agreement.
Notwithstanding those matters the respondent proceeded to cease her employment with the Griffith University and take up her position at the SCU.
At the hearing the following matters were in issue:
a)Whether it was or would have been reasonable for the University to waive or modify the operation of clause 38 of the Collective Agreement in the particular circumstances;
b)Whether the respondent made any real or reasonable attempts to mitigate the effects of providing a lessor notice period;
c)Whether the failure to give six months notice resulted in financial cost to the University and if so, what quantum;
d)
Whether the failure to give six months notice resulted in a change or increase to the workload for other staff and in particular
Ms Deborah Rossow and disruption to students;
e)Whether the University was or is required to fill the respondent’s position; and
f)Whether the University is likely to incur costs in the amount of $1,251.46 as a result of the failure to give six months notice.
Breaches
The University, as the Respondent’s employer is entitled to bring the application: s.718 WR Act.
Insofar as breaches of the WR Act are concerned s.719 relevantly provides:
“Section 719(1) An eligible court may impose a penalty in accordance with this Division on a person if:
(a) the person is bound by an applicable provision; and
(b) the person breaches the provision.”
Subsections (2) and (3) are of no present relevance. Insofar as penalties are applicable to an individual, section 719(4) of the Act provides for the imposition of 60 penalty units ($6,600); see section 719(4) of the WR Act; section 4AB of the Crimes Act1914.
In Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Mowbray FM identified “a non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty”. Those considerations would arrive from a number of decisions of the Federal Court and the approach of His Honour in Mason v Harrington Corporation Pty Ltd has been subsequently approved by that Court; see Kelly v Fitzpatrick [2007] FCA 1080 per Tracey J. The considerations identified were:
a)The nature and extent of the conduct which led to the breaches;
b)The circumstances of which that conduct took place;
c)The nature and extent of any loss and damage sustained as a result of the breaches;
d)Whether there had been any similar previous conduct by the respondent;
e)Whether the breaches were properly distinct or arose out of one course of conduct;
f)The size of the business enterprise involved;
g)Whether or not the breaches were deliberate;
h)Whether senior management was involved in the breaches;
i)Whether the party committing the breach had exhibited contrition;
j)Whether the party committing the breach had taken corrective action;
k)Whether the party committing the breach cooperated with the enforcement authorities;
l)The need to ensure compliance with minimum standards by provision of an effective means of investigation and enforcement of employee entitlements; and
m)The need for specific and general deterrence.
Both the University and the respondent accepted that these considerations should guide the exercise of my discretion in the present proceeding.
The nature and extent of the conduct
The nature of the breach was a failure to provide six months notice as required under the Collective Agreement governing the respondent’s employment. Notice provided was only 7 weeks and 1 day which fell well short of the six months notice required.
The Collective Agreement constituted a part of the governing terms and conditions of her employment with the University. By inference it established terms and conditions which were acceptable to other employees of similar stature to that of the respondent. It was contended on behalf of the University that those terms and conditions represented an industry standard. If that was the case generally, it was certainly not the case in respect of the SCU which appeared to afford much shorter notice periods. While there is compelling logic to the arguments maintained by the University concerning a six month notice period it is also equally plain that the notice period is not one of universal application. I do not think it is necessary to make any finding as to whether or there was indeed an industry standard, as such. The fact remains that the conduct of the respondent was in breach of the Collective Agreement.
Likewise an issue between the parties concerned whether it would have been reasonable to waive or modify the operation of clause 38 of the Collective Agreement. The dispute arises from the University’s right to enforce its bargain. The parties were content with the terms of the agreement at the outset so no issue of reasonableness arises.
The University had no obligation to waive clause 38. However notwithstanding the legal position between the parties it is appropriate to weigh up the circumstances when considering the penalty to be imposed in circumstances where the University sought to hold the respondent to her bargain.
Circumstances in which the conduct took place
The respondent did have the opportunity to elect either an individual Workplace Agreement or the Collective Agreement. Her employment with the University was her first significant employment as a senior academic. She had only recently completed her Doctorate and was in the process of transition from junior academic positions to more senior academic positions. Clearly she did not apply a great degree of attention or thought to the industrial regime governing her obligations. I agree with the University’s submission that her failure in this regard is not a mitigating factor and that once she became aware of that obligation she wilfully determined to proceed to terminate her employment in breach of her agreement to provide six months notice.
As at 15 July SCU were not insisting she be bound to any arrangement concerning employment with it. So much was implicit in the words attributed to Professor Graham and directed to the respondent informing her that she would have to “make a decision”. It follows that in making her decision she did so well appreciating the existence of the terms of the Collective Agreement; knowing that the University was not prepared to release her without having received six months notice; and knowing there was no compulsion to proceed with the SCU offer.
Nature and extent of any loss or damage
The University claims that as a result of the respondent’s breach it has suffered both pecuniary and non-pecuniary damage. The pecuniary damage is said to be made up of additional teaching costs. Those costs include other staff being required to assume additional responsibility and teaching loads which the University had not previously contemplated. That loss was quantified at $4,384.80. In addition the University was required to engage casual sessional staff to ensure that the University was able to deliver the teaching requirements for the subjects that the respondent would have lectured in the second semester. The cost of appointing that additional sessional staff was $18,341.28. In total it follows that the cost to the university of replacement staff approximated at $22,726.09. Although not quantified there would also have been administrative costs.
It was agreed by Ms Walker that an offsetting allowance should be made for the wages and salary which would otherwise have been payable to the respondent. When grossed up to include an allowance for superannuation the respondent’s annual salary approximated $76,000 per annum. Had she worked out her full six month notice period she would have been entitled to approximately $38,000 in wages over that period. It follows that the University did not incur any actual financial loss when allowance is made for the offset in salary.
In addition it was contended that the University lost non-pecuniary benefits. They included the advantage the University may have obtained from academic contributions expected to be made by the respondent to journal articles which would have developed the University’s research profile in the area of early childhood education. In their submissions the University quite properly conceded that these matters were not capable of quantification.
In its submission the University contended that even if the monetary losses to it were minimal the more serious consequence was damage to reputation, disruption to other staff, additional administrative and managerial burden and disadvantage to students caused by the respondent’s failure to meet the obligations of her engagement. Those matters are noted.
Similar previous misconduct
There is no evidence of the respondent having breached any other obligations under the Collective Agreement or any other agreement at any other time.
Deliberateness of breach
Unquestionably in this case the respondent acted deliberately in breaching the Collective Agreement. Her conduct however was informed by advice received from those assisting her, in particular her representative industrial organisation. The advice was plainly erroneous. In any event despite the deliberateness of the breach I do not consider the respondent’s conduct to be malicious. Clearly she was motivated by self interest. The opportunity at SCU was professionally enticing. It afforded her, as a junior academic, a unique opportunity to develop a program from the ground up. It was clearly a professionally exciting opportunity.
Throughout the course of the negotiations between the respondent and SCU she was cognisant of the need to ensure that the University was not “left in the lurch”. Almost immediately after receiving the offer and concluding she wished to accept it she set about seeking to put in place transitional arrangements. These are mitigating factors.
The respondent’s contrition, collective action and cooperation with enforcement authorities
The respondent sought to ameliorate the inconvenience that she knew her resignation would cause. There were extensive negotiations between she and superiors at the University concerning the prospects of compromising on her resignation. However agreeable terms could not be reached. Finally and in order to resolve the matter the respondent formally offered $500 to settle the proceedings. In the University’s submission it was submitted that that offer did not suggest contrition but rather was indicative of “further opportunism”. I do not accept that submission. Undoubtedly the respondent was motivated by self interest but I do not consider her conduct to be entirely cynical as the University’s submission suggests. In reaching that conclusion I had the opportunity to view the respondent under cross examination.
She impressed me as being somewhat naïve, perhaps even a little innocent about these matters, but not cynical or malicious. I had no reason to disbelieve her evidence concerning her motivations in respect of these matters.
Ensuring compliance
In its submissions the University referred to the observations of Mowbray FM in Pangaea[1] and in regard to the need to give consideration to the principle objects set out in section 3 of the WR Act which included ensuring compliance with minimum standards by providing effective means for the investigation and enforcement of employee entitlements.
[1] Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Without diminishing the intent of the object or its application in this case the object must be viewed in context. In the instant case the breach is one which would be more appropriately sound in damages. Ultimately a bargain was reached between the employer and the employee. In this case the employee has breached the bargain but beyond that it cannot be said that the breach has had broader ramifications. The concept of penalties applying to breaches of industrial instruments is more properly directed to those breaches that have a broader economic impact.
Accordingly it is no surprise to me that neither party was able to appoint to any reported instance of a case involving the imposition of a penalty in respect of a breach of a contract of employment between an employer and an employee arising from an employee’s breach of the termination clause. In my view the cases provided by both the applicant and the respondent did not draw any useful parallels. Cases involving a breach by an employer, particularly breaches concerning underpayment of awards; see Kelly v Fitzpatrick; Mason v Harrington Corporation Pty Ltd; Flattery v Zeffirelli’s Pizza Restaurant[2]; Cotis v Pow Juice Pty Ltd[3]; are not apposite. Invariably cases involving the underpayment of wages reflect upon the inequity of bargaining power between those who hold financial power, namely employers and those who do not, employees. In this case no question of abuse of financial power could arise in the circumstance of recision by the respondent employee of her agreement with the University as employer.
[2] [2007] FMCA 9
[3] [2007] FMCA 140
Likewise other cases referred to concerned instances of abuse of or attempts to abuse, economic power in an industrial context: see for instance the Community & Public Sector Union v Telstra Corporation Limited[4], a case involving an employer’s use of its power to discriminate against employees governed by certain awards and certified agreements; and Furlong v Australian Workers Union and Ors[5], a case involving the imposition of penalty for misuse of the strike power by an employee organisation.
[4] [2001] FCA 1364
[5] [2007] FMCA 443
In its submissions the University submits that the only remedy available in this instance is the imposition of a monetary penalty under section 719. It submits that the Court should regard the respondent’s breach of the Collective Agreement seriously. I accept that submission. However in recognising that matter the relativity of the position of the respondent in this case compared with the comparatives offered by the University should not be overlooked. See Printing & Kindred Unions & Others v Visa Paper Products Pty Ltd (1994) 127 ALR 673 at 686.
The University urges the Court to have regard to breaches of certified agreements under the Building & Construction Industry Improvement Act2005 and in particular refers to the authorities of Cruse v CMFEU & Anor[6] supra and Furlong & Australian Workers Union & Others supra. I have earlier touched upon the decision in Furlong. Likewise the decision in Cruse involves penalties arising from the engagement in unlawful industrial action. I do not think the penalties issued in decisions arising out of unlawful industrial action provide any useful guidance for the circumstances of this case.
[6] [2007] FMCA 1873
Deterrence
It was submitted by the University that the Court should be guided by the observations of Finkelstein J in CPSU v Telstra Corporation Limited where His Honour observed at 230-312 that:
“In another context I observed that the object of imposing pecuniary penalties may be either to punish, to deter, to rehabilitate or some combination of the three: Australian Competition and Consumer Commission v ABB Transmission and distribution Limited [2001] FCA 383. In that case I also referred to the problems associated with determining the appropriate basis for imposing penalties on a corporation. Laws are made for the protection of society. In this case of an offending corporation in breach of legislation such as the Workplace Relations Act, the notion of retribution or punishment does not seem to have a significant role. First, a contravention of this type of legislation does not excite notions of moral responsibility when compared with contraventions of the criminal law where the community has a just expectation that an offender should receive some measure of punishment or that there will be no loss of respect for the law. Put differently, there will not be any real sense of grievance in the community at large if a corporation has not been dealt with in the same way as an offender who attacks individual liberties or freedoms.
On the other hand, the basic objective of punishment should be to enhance social welfare by minimising the net social cost of wrongdoing. This is achieved by deterrence. Here I speak not only of specific deterrence but also general deterrence. In a case such as the present, that may be of some importance. The reason is that Telstra submits that there is no need to impose any penalty because it will not offend again. That may be true. But even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law’s disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct: R v Thompson (1975) 11 SASR 217. It is also important to remember that proscribed conduct is often engaged in because it is profitable, or will enhance the profitability of the company. To deter conduct engaged in with that purpose, any penalty imposed must have the potential to render the conduct unprofitable. The achievement of that object is subject to the limitations placed upon the court’s power by the legislation in question. …”
I agree with His Honour’s observations that even if there be no need for specific deterrence (as would be the case here) there will be occasions when general deterrence must take priority and in that case a penalty should be imposed to mark the law’s disapproval of the conduct in question and to act as a warning to others not to engage in similar conduct. I note however that His Honour’s remarks in that regard were prefaced in permissive rather than mandatory language. Ultimately it will always be a matter for discretion.
In summary the authorities referred to by the University support the imposition of a penalty in particular “such as to deter not only the particular offender, but others who may be disposed to engage in prohibitive conduct of a similar kind”; Trade Practices Act v Mobil Oil Australia Limited (1984) 4 FCR 296 at 298 per Toohey J. However all the authorities referred to involve circumstances where the contraventions involved circumstances where the nature of the breach extended beyond the relationship between the complainant and respondent. Directly or indirectly those cases involved an element of morality extending the behaviour beyond the parties immediate to the transaction.
In this case the less powerful of the two parties to the transaction has breached the agreement. No moral imperative arises beyond the commercial morality associated with fulfilment of one’s bargains.
This proceeding for breach could have remained a matter to be privately resolved between the parties but for the University’s determination to prosecute. An outcome for that breach could have been simply achieved by the parties agreeing terms in respect of the breach. The University is entitled to prosecute the respondent’s breach. However in the circumstances I do not accept this breach warrants a significant penalty. The evidence demonstrates that in strict financial terms the University has indeed saved by reason of the respondent’s early termination. Arguably the difference between the respondent’s projected income and the expenses incurred by the University might broadly equate with the economic value of the respondent’s academic output. However I appreciate such a simplistic analysis is nefarious.
In addition the University has retained approximately $1,800 in holiday and other accrued benefits which were forfeited to the University following the respondent’s breach.
The respondent has profited from her breach of the Collective Agreement. She has moved to more remunerative and professionally rewarding employment. Although I do not accept there was any immediate commercial motivation on her part she has clearly profited both directly and indirectly from her contravention. In broad terms the respondent’s profit on the contravention was roughly $1871. [7] When allowance is made for her loss of leave entitlements forfeited to the University ($1800) her net gain is approximately $71. In my view the penalty in this case should reflect the profit gained by her breach together with a sum to reflect a sanction for her wilful breach of contract.
[7] Salary SCU (including superannuation) $84,840.21 p.a. of $7070 per month; Salary GU (including superannuation) $76,333.41 or $6361 per month giving a difference of $709 gross per month or approximately $420 net. Projected over 4 ½ months approximated at $1,800.
I consider an appropriate penalty in this instance to be $500 (rounding up). Given the breach is one more in the nature of breach of a private bargain I do not consider any significant loading should be provided for the matter of determination in this instance.
Conclusion
The respondent admits to having breached a workplace agreement by having resigned from her employment without giving agreed notice.
I award a penalty against the respondent for the contravention in the sum of $500.00.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 28 July 2008
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