McDonald v State of South Australia - [2008] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
MCDONALD v STATE OF SOUTH AUSTRALIA
[2008] SASC 134
Judgment of The Honourable Justice Anderson
21 May 2008
EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - REMEDIES UPON BREACH - AGAINST EMPLOYER FOR WRONGFUL DISMISSAL AND OTHER BREACHES
EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW - SUPERVISION AND INSTRUCTION
EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - THE CONTRACT OF SERVICE GENERALLY - FORMATION AND CONSTRUCTION
EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - DISCHARGE AND BREACH - GENERALLY
INDUSTRIAL LAW - SOUTH AUSTRALIA - UNFAIR DISMISSAL - UNFAIR OR UNREASONABLE DISMISSAL - WHAT CONSTITUTES - OTHER PARTICULAR CASES
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS - IMPLICATION OF MUTUAL OBLIGATION
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT - PARTICULAR CONTRACTS
Plaintiff claimed common law damages for breach of contract of employment - plaintiff employed by Department of Education and Children's Services as permanent teacher and later co-ordinator - appointment coincided with rapid expansion of computer technology - demands for plaintiff's time increased - role extended to cover management and administration of computer network - plaintiff needed to work overtime and out of hours to keep up with work - plaintiff complained about workloads and type of tasks performed - meetings held following resignation of plaintiff - resignation withdrawn after meetings - plaintiff claimed key staff not informed of his complaints or outcomes of meetings - plaintiff later alleged bullying and harassment - new position advertised while plaintiff held position as co-ordinator - plaintiff applied for but not interviewed for the job - job and person specifications changed - plaintiff claimed breach of express and implied terms of contract - claimed breach of duty of care in not providing safe workplace or system of work - claimed estoppel from failure to pay overtime and reimbursement for additional work performed - claimed deceit as to representations of type of work to be performed - defendant claimed plaintiff not required to perform extra work - claimed plaintiff undertook extra duties of own free will - alleged plaintiff ignored instructions not to undertake extra work - claimed plaintiff did not avail himself of support staff - denied allegations of bullying and harassment - defendant denied breach of contract and alleged plaintiff's actions lacked good faith - claimed no duty existed to prevent employee from undertaking voluntary risks - defendant claimed plaintiff failed to mitigate loss - defendant claimed plaintiff contributorily negligent - what were terms of contract of employment - whether implied term of mutual trust and confidence existed in employment contract - whether employer committed deceit - whether breach of contract - whether plaintiff constructively dismissed - whether plaintiff entitled to damages in contract generally - whether plaintiff entitled to damages for non-economic loss arising from personal injury under contract of employment - whether aggravated and/or exemplary damages available.
Held: Plaintiff entitled to treat contract as repudiated and therefore constructively dismiss himself - defendant breached implied term of mutual trust and confidence - defendant had duty to prevent plaintiff from performing work not required of him but of which it had knowledge and which was of benefit to the defendant - plaintiff unfairly precluded from interview for co-ordinator's position - defendant failed to follow up complaints lodged by plaintiff regarding workplace and workloads - defendant failed to follow up grievance - grievance never resolved - plaintiff not able to claim common law damages for non-economic loss - defendant's allegation of contributory negligence rejected - no award for aggravated or exemplary damages - plaintiff entitled to past and future loss of earning capacity and incidental losses.
Trade Practices Act 1974 (Cth); Workplace Relations Act 1996 (Cth) s 607; Education Act 1972 (SA) s 15 and s 19; Education Regulations 1997 (SA) r 26, r 37(2)(d) and r 121(2); Limitation of Actions Act 1936 (SA); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA); Occupational Health, Safety and Welfare Act 1986 (SA); Worker's Rehabililtation and Compensation Act 1986 (SA) s 54(1); Supreme Court Rules 1987 Civil, referred to.
Jones v Dunkel (1959) 101 CLR 298; Errington v Target Australia Pty Ltd (1995) 65 SASR 378; Magill v Magill (2006) 226 CLR 551; Hadley v Baxendale (1859) 156 ER 145; Burazin v Blacktown City Guardian (1996) 142 ALR 144; Goldman Sachs JB Were Services Pty Ltd v Nikolich (2007) 163 FCR 62; Addis v Gramophone Company Limited [1909] AC 488; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Johnson v Unisys [2003] 1 AC 518, applied.
Baltic Shipping v Dillon (The Ship Mikhail Lermontov) (1993) 176 CLR 344, distinguished.
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225; Blaikie v SA Superannuation Board (1995) 65 SASR 85; Bankstown Foundry Pty Ltd v Braistine (1986) 160 CLR 301; Sim v Rotherham Metropolitan Borough Council [1987] Ch 216; Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410; Thomson v Orica Australia Pty Ltd (2002) 116 IR 186; Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20; Bliss v South East Thames Regional Health Authority [1987] ICR 700; Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; Concut Pty Ltd v Worrell (2000) 176 ALR 693; Carrigan v Darwin City Council Unreported, Industrial Relations Court, von Doussa J, 20 March 1997; Western Excavating (ECC) Ltd v Sharp [1978] QB 761; Lewis v Motorworld Garages Ltd [1986] ICR 157; McDonald v State of South Australia Unreported, Supreme Court of South Australia, Judge Lunn, 25 July 2007; Contracts of Employment: Renaissance of the implied term of trust and confidence Godfrey K, (2003) 77 ALJ 764, discussed.
Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347; Easling v Mahoney Insurance Brokers (2001) 78 SASR 489; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; Mohazab v Dick Smith (No 2) (1995) 62 IR 200; Astley v Austrust Ltd (1999) 197 CLR 1; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 188; Watts v Rake (1960) 108 CLR 158; Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, considered.

MCDONALD v STATE OF SOUTH AUSTRALIA
[2008] SASC 134
Civil
ANDERSON J.
INDEX
Introduction
Self-representation
Background
Computing
Mount Barker High School 1996
Modbury High School (Mr Hill and Mr Boaden) 1997
Brighton Secondary School 1997 to January 2001
Mr Sando
Ms Cochram
Ms Schupelius
Mr Nelligan
Meetings with Ms Schupelius and Ms Cochram
Findings in relation to employment at Brighton up to January 2001
Brighton Secondary School from February 2001 to July 2001
Mr Potts
Brighton Secondary School from July 2001 to January 2003
Failure to gain an interview
Sick leave
Mr Mitchell’s evidence
Ms Clancy
Findings relating to Mr Mitchell
Grievance
Contract of Employment
Mr McDonald’s employment with DECS
Submissions as to the terms of the employment contract
Express terms
The Education Act 1972 (SA) and the Education Regulations 1977 (SA)
The Award
ED112
The letter of appointment
The policies
Job & Person Specifications
Findings as to express terms

Implied terms
Teachers’ professional obligations
Duty to provide a safe system of work
Mutual trust and confidence
Findings as to implied terms

Constructive dismissal
Alleged acquiescence

Conclusion
Damages claimed
Ruling on the proposed further amended statement of claim
Reasons for refusal of amendment during trial
Ruling on the amendment to the defence
Damages for breach of contract – wrongful dismissal
Aggravated and exemplary damages
Claim for deceit
Mitigation of loss
Foreseeability
Causation
Assessment of damages
(i)     Loss of earning capacity to date
(ii)      Loss of future earning capacity
(iii)    Loss of superannuation benefits
(iv)     Loss of long service leave entitlements
(v)      Claim for overtime
(vi)     Claim for lunch duty
(vii)    Solicitor’s costs of action
(viii)     Loss of dignity and reputation
Contributory negligence
Final assessment of damages
Introduction

The plaintiff, Mr McDonald, was formerly a teacher employed by the defendant, the Department of Education and Children’s Services (DECS). His employment with DECS commenced in 1988 but ceased in 1991 for several years when he took leave for parenting and child rearing and returned to his home in Scotland. He returned to South Australia in 1996 where he taught at Mt Barker High School (Mt Barker). His last appointment as a teacher employed by DECS was at Brighton Secondary School (Brighton). This employment commenced in 1997 and concluded in 2003.
Mr McDonald claims that during the course of his employment and in particular at Mt Barker and Brighton, DECS was in breach of its contractual duty to take care for his safety and welfare by providing a safe system of work. He also claims that in particular at Brighton, he was harassed, victimised and bullied. Mr McDonald was trained and experienced in teaching business studies and economics. His employment at Brighton and prior to that at Mt Barker were significant in that he was asked for the first time in his career to take on roles involving the network management of the computer systems in the schools. This was in addition to teaching subjects as part of the curriculum, and he alleges it was a task for which he was not qualified.
It should be noted from the outset that the background of this case and the disputes which have arisen must be considered in light of the rapid development and expansion of computers and information technology that was taking place generally in schools and in particular at Brighton during the mid-1990s.
Mr McDonald was asked to carry out the work of a network manager at Mt Barker. This was his first employment in South Australia after returning from Scotland. He claims that his health suffered as a result of being asked to do this work at Mt Barker and that it then became worse when he was again asked to do similar work at Brighton. He says he was not qualified to do the work that he performed in repairing and maintaining computers and other equipment. He says his employer either knew or should have known that he was unqualified in this area of work. He claims that his employer should also have observed that it was affecting his health because he was being placed under stress. He claims that he was not supported by his employer and was in fact harassed and bullied. He claims that there was a breach of a fundamental term in the contract to provide a safe system of work and also that there was a breach of an implied term in his contract of employment, namely, conduct by his employer which destroyed or damaged the relationship of mutual trust and confidence.
It is Mr McDonald’s claim that in the circumstances in which he found himself in early 2003 he eventually had no option but to terminate his employment. He alleges that he had no choice other than to terminate his employment because of the conduct of the servants or agents of his employer which he claims amounted to a repudiation of the contract of employment. Mr McDonald therefore maintains that the termination of his employment was in circumstances where he was constructively dismissed, that is, his termination was brought about because of the breaches of contract by his employer.
Although Mr McDonald alleges ongoing victimisation from an early stage of his employment with DECS, as will be seen later in these reasons, the more important events which occupied a large part of the evidence relate to Mr McDonald’s employment at Brighton between 1997 and 2003, and more specifically between 2001 and 2003.
DECS has argued that because of the six year statutory limitation for claims based in contract, the only matters relevant to Mr McDonald’s claim are confined to a period of six years prior to the date of the issue of proceedings. Proceedings were issued on 16 April 2004 and therefore it is argued that 16 April 1998 is the cut-off date.
As will be apparent from my reasons, I have concluded that relevant events relating to the contractual duties of DECS occurred from 1996 onwards. Mr McDonald’s cause of action in contract probably had its beginnings during 1996 but, as I have found, there followed a continuous and cumulative series of relevant events, most of which post-dated April 1998. In these circumstances I have not regarded Mr McDonald’s action based in contract as statute barred.
The issues to be decided are as follows:
1.What were the actual terms of the contract of employment which existed at the time Mr McDonald terminated his employment and claimed a constructive dismissal?
2.What terms were express and what terms should be implied in that contract of employment?
3.What were the important events leading up to Mr McDonald resigning and claiming a constructive dismissal?
4.Was Mr McDonald justified in taking the stand that he did as a matter of law, that is, was there a repudiation of the contract by DECS, and was he justified in constructively dismissing himself?
5.In the event that these matters are resolved in favour of Mr McDonald, what is the measure of his loss and damage?
Self-representation
Before dealing with the events of Brighton it is necessary for me to say something about Mr McDonald.
Mr McDonald represented himself in the long hearing which took place before me. Likewise he represented himself during the long interlocutory processes leading up to trial. He had a keen appreciation of the issues involved and a good understanding of the legal principles. On earlier occasions in the history of this matter he had been represented by lawyers. However, he lost faith in lawyers when his difficulties arose at Brighton. He was seeking advice as to his rights and was effectively told by three different lawyers that he should make a claim for workers compensation. He did not appreciate until after he made such a claim that this might preclude him from any action for common law damages that he wished to take. He then withdrew his claim. He said he always wanted to claim damages because of the way he had been dealt with.
During the trial Mr McDonald came across as a very earnest and diligent individual whom I found to be somewhat obsessive in his reaction to anything that occurred in the course of his employment. He seemed to believe that everything was part of a grand plan or conspiracy to cause him embarrassment and distress. As I will later indicate, I think he was justified in some of his conclusions but overall I must say that I think some of Mr McDonald’s reactions to events that occurred were exaggerated. Mr McDonald has a fiery disposition.
At various times during the trial it was apparent that Mr McDonald was losing patience and had no faith in the legal system. He often indicated to me, when I either attempted to assist him or made rulings which affected the running of the trial, that he was heading for the High Court in any event, whatever happened in this matter. He said he knew from the moment he started his legal proceeding, and having regard to what he terms the various barriers put in his way by his employer, that he could not get justice until he went to the High Court.
Mr Mills criticised Mr McDonald for his lack of reliability as an historian. It is true that some of the dates deposed to by Mr McDonald have been proved inaccurate by other evidence. However, in general terms I am not prepared to find Mr McDonald unreliable in his recounting of the details of events, even though some of the timing of the events is inaccurate. He has clearly attempted to fix dates by reconstruction and has been in error on some occasions. I find him to be a good historian in relation to the major events described by him during his evidence.
It was an unsatisfactory atmosphere in which to conduct the litigation because it was difficult to get agreement on anything, and whenever agreement was being suggested by Mr McDonald’s opposition he immediately interpreted that as an attempt by his opposition to gain some unfair advantage over him. There were very few matters of common ground, although there are some important admitted facts, which I will deal with during the course of these reasons.
Both sides called a large number of witnesses. Mr McDonald called employees and former employees of DECS to help prove his case. I will deal with the most important witnesses later in these reasons. As will become apparent, I thought there were some witnesses who took a stand against Mr McDonald and therefore gave their evidence in an unobjective and unhelpful way. Some of these witnesses I am not prepared to accept on crucial matters where I prefer the evidence of Mr McDonald. While some of the witnesses called by Mr McDonald gave evidence adverse to his case, I do not regard them as his witnesses in the normal scheme of things. He was attempting to prove his case by the only means available to him and by calling these witnesses he was able to add substantially to his cause, although as I have said, some of the witnesses clearly had interests adverse to those of Mr McDonald. Witnesses in this category, but called by Mr McDonald, include Mr Boaden, Ms Cochram and Ms Hyde.
Background
Mr McDonald reached third year at high school in Scotland. He left school at the age of 14 to take over his father’s window cleaning business because his father had become ill and it was necessary for Mr McDonald to support the large family. His mother had died when he was quite young. When he was about 18 years of age he worked in the local woollen mills for about two years.
In 1967 he went back to high school at the age of 19. He told me that at that time he was almost illiterate. He obtained further qualifications at high school and received O grades in arithmetic, history and modern studies. He decided to pursue higher education, obtained a bursary and was then able to study in Edinburgh. After two years of further study he had obtained sufficient qualifications to attend university, and enrolled in the Heriot-Watt University. He was then successful in completing a degree in business organisation.
After obtaining his degree, he did a 12 month course involving a teaching certificate in business studies and economics at a teachers’ college in Edinburgh. Following that, Mr McDonald applied for a teaching job in New Zealand, and he and his wife moved there in 1975 when he obtained employment. This was a two-year contract and he was teaching Year 12 business studies and economics.
When that contract finished, he and his wife moved to Sydney where he obtained a job in a girls’ college run by the Brigidine nuns. At that school he taught Years 7 to 10 in commerce and geography, and he remained at the school for approximately two years. Whilst in Sydney he also attended night school and obtained further qualifications in secretarial work, including shorthand and typing.
Mr McDonald and his wife then decided to return to Scotland, where he obtained a job at Selkirk High School as head of the department of business studies and economics. He remained at Selkirk High School for two years.

He was asked by the Brigidine College whether he was interested in returning to Sydney, and he and his wife moved back to Australia in 1981. He remained a teacher at that college for approximately seven years, where he taught commerce and geography.
Mr McDonald came to Adelaide for a holiday in 1988 and took up employment with DECS. His first job was at Glengowrie High School (Glengowrie). This was a contract position between May and December 1988. At Glengowrie Mr McDonald taught Year 11 business education and general maths, Year 10 typing and Year 8 English. He was then recommended for a permanent teaching position. He obtained such a job at Murray Bridge High School (Murray Bridge). At Murray Bridge Mr McDonald taught Year 11 accounting and typing, Year 10 typing and Year 12 SAS word processing. The assessments made of Mr McDonald, both at Glengowrie and at Murray Bridge, showed him to be a good teacher, with suitability for a permanent role.
Following his work at Murray Bridge he was offered, and accepted, a position at Christies Beach High School (Christies Beach). At Christies Beach, Mr McDonald taught Year 12 PES accounting and economics, Year 12 typing and Year 11 business studies. Again the assessment made of him whilst employed at Christies Beach was very favourable, with the comment being made that he was an extremely well qualified and competent business education teacher, and that with the shortage of such teachers in South Australia they should do everything possible to retain him.
It is interesting to note that in 1989 when Mr McDonald was reviewed, one of the reviewers made the point that he had not taught any computing other than word processing. The other panellist praised his skill as a business education teacher but said he had a lack of knowledge of computer systems suitable for Year 12 teaching. The moderator agreed with that assessment. From that point onwards there were no further additions to Mr McDonald’s qualifications, other than when he taught himself on the job.
After Christies Beach, he applied for the position of acting senior business education teacher at Wirreanda High School. He was then told that he could not take up this position because he was not a permanent teacher within the South Australian Education Department. This really started what was to be a series of events in which Mr McDonald claimed that he was being discriminated against in relation to his employment opportunities. To point out the injustice of how he regarded that situation, he sent letters of complaint to the Minister of Education, the State Premier, the Federal Minister for Education and the Prime Minister of Australia. He also took up the matter with the Ombudsman for South Australia.
I will deal with the distinction between a contract teacher and a permanent teacher when I deal with the terms of the contract of employment later in these reasons.
In 1991 Mr McDonald took leave of absence for parenting and child rearing and he and his wife returned to Edinburgh, Scotland. In 1991 he was employed in a temporary teaching post at Craigmount High School in Scotland as a full-time teacher of computing studies, a position he occupied for 12 months. He then took up a permanent position at Wester Hailes Community Education Centre on a full-time basis, where he worked with adult learners. The next year he transferred back to Craigmount High School to work once again as a full-time teacher of computing studies. Before returning to Australia he held a part-time position as a Community Education Head Teacher at Royal High School. This was largely an administrative role.
When he returned to South Australia, most of Mr McDonald’s teaching was within the areas of business studies and specific subjects essentially related to keyboard skills including typing, word processing and computing studies generally.
Computing
In the early to mid-1990s computers were not in wide use in South Australian public schools.
When Mr McDonald entered on his ED112 Teacher Placement form for DECS in 1995 that he was a business studies teacher with some computing experience, his knowledge of computers extended to the use of word processing, database and spreadsheet programs. He did not know anything about the inside workings or technical aspects of computers or managing networks. He had no qualifications or training in the repair and maintenance of computers, printers and associated hardware.
The use of the term “computing” within the secondary school environment in 1996 commonly referred to using software and operating systems. It did not extend to such technical or hardware knowledge as programming or networking. Microsoft Office programs such as Excel and Word began to become dominant in the early to mid-1990s, and prior to this word processing was generally referred to as “computing”.
The Teacher Vacancy Notification form for 1996 places computing in the cross-curricula areas, whereas the more specific subjects are placed within the studies of society and environment. Computing is really therefore a generic term for a subject to be taught across the curricula. It is capable of many different meanings.
Some insight into the use of the term “computing” is gained from the evidence of the principal at Brighton in 1998 to 2001, Ms Schupelius. She said, “There’s computing as in working with, there is computing as in knowing about and there’s computing as in what we do in our heads”. Ms Schupelius agreed that there is quite a difference between working outside a computer, for example, word processing, and other skills that are involved in actually making the machine work. Ms Schupelius said that Mr McDonald’s position “of necessity involved knowledge about working with the systems and the equipment in order to make the learning and teaching programs possible”.
Mount Barker High School 1996
In 1995 whilst still in Scotland, Mr McDonald completed an ED112 Teacher Placement Form in order to obtain a position with DECS for 1996. This form was sent to his home in Edinburgh by DECS. On the form he indicated that he was a business studies teacher with some experience in computing courses. He nominated computer based subjects on the form and indicated he had experience in spreadsheets, graphics, databases and e-mail. He told me that he was later told by DECS what school he was going to but he now cannot remember which one it was. However, when he arrived in South Australia he was not sent to that school but was sent to Mt Barker instead. He did not receive a letter of appointment until after he commenced at Mr Barker. For the vacancy he was appointed to, the letter of appointment nominated computing and business maths, both up to Year 12. He started at Mt Barker in January 1996 and had a full-time teaching load, which included five classes and a home group. He was then asked by the principal at Mt Barker, Mr Parsons, to look after all the computers in the school’s computer networks.
Mr McDonald agreed to do this, although he had not previously been involved in managing networks. He had no-one to manage or supervise him in that work. In addition he was not provided with any training. His computer experience was at the keyboard level and not related to the technical aspect of computers or their hardware. The job of network manager would not normally involve any hands-on maintenance or repair work.
This was at a time when DECS’ information technology program was being rolled out. This was a program to dramatically increase the number of computers in schools controlled by DECS. At Mt Barker Mr McDonald experienced many difficulties because there were three different generations of computers that were all in a poor state of repair. Mr McDonald did the work managing the network willingly and also involved himself in out-of-hours work by taking any malfunctioning computers for repair to the city, where he was living. He took them on his way home and then picked them up and took them back to the school the following morning. The head master, not surprisingly, was very pleased with the work that Mr McDonald was doing and spoke highly of Mr McDonald’s work in a form that he provided to DECS at the end of the year.
Mr McDonald performed in a hybrid role because of the absence of two teachers from the previous year. Mr Parsons stated in a document entitled “1997 Teacher Placement” that Mr McDonald replaced both a Technology Co-ordinator and a Network Manager. He said this was a demanding and complex task. Mr Parsons, not knowing of Mr McDonald’s lack of experience, praised his experience and knowledge. Apart from Mr McDonald’s success in managing the network, Mr Parsons also praised his teaching expertise and his understanding of students. Mt Barker had been given a new network and Mr McDonald got it up and running when those teachers who were to be involved did not return to the school in 1996.
It was this information provided by Mr Parsons that was forwarded to Mr Hill before the interview for the Modbury position, which I will deal with shortly.
Mr McDonald told me that in August 1996 during his year at Mt Barker he went to a doctor. He said that he was then suffering from stomach cramps, pains in his shoulders and was vomiting. He said that he was prescribed medication by way of anti-depressants and also given something for his stomach. Apparently he had also experienced the same problems in Scotland before returning to Australia and had sought and obtained medical treatment. The problems were related to stress and anxiety at work.
Records from DECS’ Leave Management System showed that Mr McDonald did in fact take sick leave on 21 and 22 August 1996. No medical certificate was discovered by either party in relation to this period of absence. Mr Parsons gave evidence that in his discussions with Mr McDonald regarding an attempt to have Mr McDonald placed at Mt Barker for the 1997 school year, Mr McDonald made no mention of the fact that working at Mt Barker was causing him health problems. Records from the Murray Health Clinic show an attendance by Mr McDonald on 22 August 1996. The clinic notes reveal that he complained of his stressful job of both teaching and maintaining the computers. He told the doctor that he had had similar problems the previous year in Scotland, in a similar job. Mr McDonald said that he provided a medical certificate to the school after his two-day absence but none has been located. He may be mistaken because a medical certificate was not required unless there was an absence of three days or more. It is not possible to say, therefore, that DECS had any knowledge of Mr McDonald’s anxiety and stress at that stage, through the agency of any medical certificate. However there is other evidence from within DECS suggesting that some information regarding Mr McDonald’s health problems was recorded. The absence from work was recorded as sick leave, and other information was available because, as I will find, Mr Boaden was aware of the difficulties encountered by Mr McDonald at Mt Barker. I go on to find that Mr McDonald did tell Mr Boaden about the problems he had encountered at Mt Barker relating to the stress caused by the workload in teaching and managing the network.
Mr McDonald was cross-examined about a letter dated 21 October 1996 signed by he and Mr Parsons. It was written to Mr Boaden and is a request by Mr Parsons to have Mr McDonald stay at Mt Barker in 1997. Mr McDonald said he signed it to keep Mr Parsons happy but he knew that he would not get the job and also that he did not want the job because of the troubles it caused him. He said that was why he had not been interested in staying at Mt Barker. Mr Parsons said he was not aware of any problems encountered by Mr McDonald during 1996. Given that I later find that Mr McDonald did speak to Mr Boaden in December 1996 about problems at Mt Barker, I think it likely that Mr McDonald did not want to return to Mt Barker in 1997 and that he signed the letter for the reason he gave.
Mr Mills submitted that there was an onus on Mr McDonald to advise his employer about his treatment for stress at the time he completed the ED112 Teacher Placement form. There was no provision in his application form for any medical history and no question relevant to his state of health. There were no directions to include any medical information whatsoever. No health assessment was carried out by DECS. If there was an onus, then in my view it was discharged by the provision of information to Mr Boaden which I find took place when Mr McDonald was speaking with Mr Boaden in December 1996.
Modbury High School (Mr Hill and Mr Boaden) 1997
After completing a year at Mt Barker, Mr McDonald attended an interview with the principal of Modbury High School (Modbury), Mr Hill. This meeting took place on 11 December 1996. Mr McDonald said this followed a telephone conversation he had with Mr Boaden. Mr McDonald received a letter of appointment to Modbury for a ten-year position between 1997 and 2007 as a business studies teacher. There is a dispute about what happened in the meeting between Mr McDonald and the principal Mr Hill, which I will deal with later. It is sufficient to say that they did not agree and an argument ensued.
Mr McDonald’s version of events is that Mr Hill, knowing of Mr McDonald’s success in operating the networks at Mt Barker, asked him to look after the networks at Modbury in addition to teaching a full teaching load. Mr McDonald told Mr Hill he was not going to do that because of the problems it had caused him at Mt Barker. Mr Hill had the information from Mr Parsons earlier referred to, as this had been forwarded by Mr Parsons. That information was, as I have indicated, highly complimentary of Mr McDonald’s ability to manage a network. It was a glowing reference.
According to Mr Hill, Mr McDonald became quite offensive at the outset of the interview. Mr Hill’s version of the interview is that they did not even get to the stage of discussing networks because Mr McDonald, upon first entering into the discussion, demanded to be paid overtime for all of the extra work he considered he would be doing. He wanted an increase in salary. This led to Mr Hill reporting by facsimile dated 12 December 1996 to the acting Assistant Director Personnel of DECS that he could not have an effective working relationship with Mr McDonald. Mr Hill recommended that Mr McDonald not be appointed to Modbury in 1997. This facsimile was sent the day following the interview.
Mr Hill explained in that same facsimile that due to other staff appointments and a better understanding of student enrolments, the vacancy for which Mr McDonald had applied would be redescribed. The original vacancy to which Mr McDonald was to be appointed was for the subject areas of economics (Year 12), business studies (Year 12), information processing-personal (Year 12), information processing-business documents (Year 12), and computing (Year 11). As redescribed in Mr Hill’s letter, immediately following his meeting with Mr McDonald, the position was now for economics (Year 12), business studies (Year 12) and accounting (Year 11) only.
Mr McDonald claims that he was “set up” for this job and alleges that it could not have been changed for any genuine reason in less than 24 hours by Mr Hill without any consultation between Mr Hill and head office. Mr McDonald maintains that head office, including Mr Boaden, was aware of his problems at Mt Barker and I have indicated that there is support for this in an internal memo, which I will refer to later. Mr McDonald also gave evidence that he advised Mr Boaden of his problems at Mt Barker in the earlier telephone call and I find that such a telephone call did occur and that Mr Boaden was so advised.
Following his discussions with Mr Hill at Modbury, Mr McDonald described a series of events that led to a meeting with Mr Boaden. Mr Boaden’s evidence was called in advance of the trial commencing because he was seriously ill. Mr Boaden held a senior management position in DECS and was responsible for placements into schools.
After speaking with Mr Boaden, Mr McDonald said that he was eventually offered a job at Brighton. Mr Boaden’s evidence was that he had no recollection of these events. He in fact said he could not recall ever meeting Mr McDonald. He also claimed to have no knowledge of a letter from Mr Hill to Mr Saunderson concerning Mr McDonald’s meeting at Modbury High School. Mr Saunderson was the acting assistant director of personnel and worked closely with Mr Boaden. Mr McDonald submitted that it would be unlikely that Mr Boaden would not remember meeting him. Having regard to what I observed of Mr McDonald, I think he is a person who would be difficult to forget.
Mr McDonald claimed that after the meeting with Mr Hill, he received a call from Mr Boaden inviting him to a meeting at Mr Boaden’s Flinders Street office. Mr Boaden telephoned Mr McDonald and requested that he come into the office and explain what had happened at Modbury. Mr McDonald said that during the meeting with Mr Boaden he referred to Mr Hill as “a bloody idiot”. He said Mr Boaden agreed. Mr McDonald said he had decided he would still work in the area of information technology but had made it clear that he did not want to end up fixing computers. This was in response to a question from Mr Boaden.
According to Mr McDonald, Mr Boaden asked him which principals he had worked with before, and he said he enjoyed working with a Ms Schupelius. At this point, Mr McDonald was told by Mr Boaden that he would contact him in early January 1997.
Mr McDonald said that Mr Boaden did contact him as promised in early January 1997 to offer him a position at Brighton where Ms Schupelius was principal. Mr McDonald accepted the position a couple of days later, at which point Mr Boaden undertook to notify Ms Schupelius and send out a letter of appointment.
Mr McDonald said that his first contact with Mr Boaden was by telephone when he was still at Mt Barker in December 1996. Mr McDonald said that when he later met with Mr Boaden he informed him that the extra duties at Mt Barker had made him ill. Mr Boaden said he could not recollect that. He said, however, that if such a discussion had occurred, he would have asked for medical evidence of his health. This statement must be examined in light of the fact that by some means information about Mr McDonald and his problems at Mt Barker had been recorded and was known to head office. Mr Boaden is the obvious potential source of that information, if Mr McDonald is correct as to what he told him. When Mr McDonald’s grievance was later investigated, a memo dated 19 November 2003 revealed that Mr McDonald’s departure from Mt Barker was co-ordinated by DECS’ staffing officers because Mr McDonald had stated that he was exposed “both to an unsafe place of work and an unsafe system of work”. I find it likely that the source of that information was Mr Boaden.
Mr McDonald said that Mr Boaden had told him the job at Brighton involved some information technology in relation to the curriculum. Mr McDonald said he would “give it a go”, even though he only knew about word processing from his work as a teacher of business studies. He said he had come from typewriters into word processing. As I have indicated, his skills were in the use of desktop publishing, spreadsheets and typing in addition to his qualifications in business studies and economics. These skills allowed him to teach subjects such as business documents, small business management and law and business.
I find that Mr McDonald’s version of events, both in relation to the interview with Mr Hill and the subsequent interview with Mr Boaden, are essentially correct. It was the meeting with Mr Hill which led to the meeting with Mr Boaden. It is not likely that Mr McDonald started out demanding more pay from Mr Hill at Modbury unless it was related to doing extra work. The extra work involved the network management. I accept Mr McDonald’s account of both his meeting with Mr Hill and his subsequent discussion with Mr Boaden.

Mr Hill made either Mr Boaden or Mr Saunderson aware of the problems with Mr McDonald. I find that Mr Boaden sought to place Mr McDonald somewhere where Mr Boaden believed Mr McDonald would be comfortable with one of his former principals, namely, Ms Schupelius. At the same time Brighton was in need of a network manager and an IT co-ordinator.
Ms Schupelius advised DECS on 30 December 1996 that she had not filled the co-ordinator IT position. She wanted to do it from within the school, if DECS agreed. She stated that she needed to have a computing teacher to Year 12 instead. Mr Boaden thought that Mr McDonald fitted the bill and hence advised Mr McDonald in January about Brighton.
The times and dates mentioned by Mr McDonald in his evidence are probably not strictly accurate but I find that the conversations between Mr McDonald and Mr Boaden did take place and covered the areas deposed to by Mr McDonald. In particular I find that Mr Boaden was told by Mr McDonald that he had encountered health problems at Mt Barker because of work related stress and anxiety.
Mr McDonald has maintained a claim for deceit arising out of the events surrounding his appointment to Brighton. In his statement of claim he links the interview with Mr Hill at Modbury to the subsequent discussions he had with Mr Boaden. In turn Mr McDonald links those discussions with Mr Boaden to his subsequent appointment to Brighton and his allegation that Mr Boaden assured him that he would not be required to do the type of computer maintenance and repair work he did at Mt Barker. He suggests that Mr Boaden and Ms Schupelius were in collusion in appointing him to Brighton.
It was, in my view, convenient for both Ms Schupelius and Mr Boaden that Mr McDonald became available to teach at Brighton. It was fortuitous that there was a teacher with recent experience in network management at Mt Barker who was also a potential IT co-ordinator. I find that Ms Schupelius clearly had Mr McDonald in mind after he commenced at Brighton for a future role as co-ordinator and also as someone who could potentially look after and manage a network. She needed someone to fill both roles in 1997.
I do not find some of the allegations made by Mr McDonald in his statement of claim to be made out. I do not find the motives alleged by Mr McDonald of Mr Boaden to be made out. As I have indicated, it was fortuitous that Mr McDonald became available as a result of his dispute with Mr Hill at Modbury.
Mr McDonald alleged that Mr Boaden agreed with the fact that he had been asked to do work at Modbury outside of the duties in the notice of appointment. It was also alleged that Mr Boaden agreed that Mr McDonald’s health would be at risk if he performed such duties. I am unable to find these allegations substantiated on the evidence.
Mr Boaden clearly took advantage of the fact that Mr McDonald had worked with Ms Schupelius in apparently harmonious circumstances earlier and that she was looking for someone to fill a role which she was unable to fill internally. Mr Boaden’s memory of events was very limited. Mr McDonald is a person who would have made his presence felt, as I have indicated, and I find that Mr Boaden was either mistaken or unable to recall events because of his own health problems. I find Mr McDonald’s account of his meeting with Mr Boaden to be generally reliable, with the exception I have just referred to.
However, there is insufficient evidence to link Mr Boaden’s actions to Mr McDonald’s subsequent appointment by Ms Schupelius to the co-ordinator position. I will deal with this aspect further when I deal with the allegation of deceit later in these reasons.
I am unable to find on the evidence that Mr Boaden and Ms Schupelius collaborated, but as I have indicated, Mr McDonald answered dilemmas for both of them. I do not find that Mr Boaden gave Mr McDonald the assurances alleged by Mr McDonald in relation to working on computer hardware and software maintenance. It is unlikely, in my view, that Mr Boaden would have expressed such views at the stage he was seeking to place Mr McDonald at Brighton.
It then becomes necessary to trace in some detail the events which occurred at Brighton between 1997 and 2003. It is during this time that most of Mr McDonald’s complaints arose. As I have said, he still maintains that he was dealt with unfairly prior to this time and back as far as 1988 when he first began as a teacher employed by DECS. I do not regard those early events as linked to the problems Mr McDonald encountered from 1997 to 2003.
Brighton Secondary School 1997 to January 2001
Mr McDonald commenced employment at Brighton on 23 January 1997. He had not been sent a letter of appointment before he commenced work at Brighton. However, he obtained one within a day or so of starting at the school. He met with the principal, Ms Schupelius, on 23 January 1997 when they discussed his timetable. He ended up being asked to take a full load of five classes, which he described as being across the computer and information technology field. The letter of appointment indicates that he was appointed for one year from 23 January 1997 to 21 January 1998. The vacancy he filled was for computing up to Year 12 and mathematics to Year 11. He was not a qualified maths teacher, but had taught business maths and general maths earlier in his career.
Mr McDonald described the computer equipment at the school as outdated and either broken or not working properly. He had no experience with the technicalities of computer hardware. For the first six months he taught all the subjects allocated to him.
As I have said, Mr McDonald was given no training or assistance at Mt Barker in managing the network. Brighton was an even larger school and therefore the difficulties were multiplied. Mr McDonald started to fix the computers which were outdated and in need of repair or upgrade. He needed to do this in order to teach his own computing lessons. He was left to his own devices and continued to clean and repair the computers because no-one else did the work. Mr McDonald did not consider that the position of curriculum manager involved building or maintaining networks.
As technology developed during the 1990s, Brighton needed to build new computer networks, and in 1997 the school acquired a new IBM server. However, DECS left the school to deal with the task of building the networks, and Mr McDonald was asked to do this work. It soon became apparent that he needed assistance.
Mr McDonald asked Ms Schupelius for assistance in 1997. Ms Schupelius responded by asking whether he had any ideas, and he suggested a former student from Mt Barker, Mr Crompton. In approximately April 1997 Mr Crompton came to work as a School Support Officer (SSO). Although starting on 12 hours a week, his work hours soon increased to 25 hours per week. The idea was that the SSO would attend to the technical work of maintenance and hardware problems.
When Mr McDonald commenced at Brighton he had very little experience working in a PC environment. He had first come across that technology at Mt Barker. Likewise, Mr Crompton had no experience with PCs. Both of them had experience on Apple Macs. Various problems were encountered with the management and use of the PCs and Mr McDonald said that he made Ms Schupelius aware of these problems and that she authorised his actions in remedying them. He said that he continued to keep both Ms Schupelius and Mr Sando, who was the assistant principal of information technology, informed of the developments as they were occurring. In 1997 Mr McDonald was therefore carrying out his ordinary teaching workload, together with attempting to build and manage the networks for the new computer system. It fell to him, in the absence of anyone else, to attempt to deal with requests and complaints from teachers and students when the computers were not working correctly. Some of the teachers were in need of assistance because of their lack of understanding of the new technology. Of course, students also required assistance when the computers malfunctioned.
As a result, there was a lot of after-hours work by Mr McDonald and Mr Crompton. They regularly worked at night and on weekends, trying to get the equipment operating properly. It was not possible to do that work during ordinary hours as access to the computers was required by students and staff during school hours. Mr McDonald was clearly working under pressure yet neither the school nor DECS attempted to manage a potentially risky situation regarding the health and welfare of Mr McDonald.
Mr McDonald said that at one stage in 1998 Ms Schupelius suggested that he stop teaching altogether to devote his time to the network problems. He indicated that he did not want to give up teaching, so a variation was made to his teaching load and he ended up teaching two out of the four classes that he was previously required to teach as a co-ordinator. Ms Schupelius could not remember this discussion but I find that it took place. He continued to teach two subjects and manage the curriculum network in the main but was also involved in the expansion of the administration network.
It was necessary to develop programs for the Year 8 information technology curriculum. Mr McDonald said he was asked by the principal and Mr Sando to do this. He provided examples of the work he did in this area.
There were approximately 1,200 students at Brighton in 1997 and many IT problems were encountered during the course of each day which required solutions. Mr Crompton was the first port of call for IT problems but Mr McDonald was regularly called upon to give technical assistance to students and also to teachers when problems arose and Mr Crompton was otherwise engaged. Mr McDonald and Mr Crompton had a good working relationship, and their work proceeded reasonably well up until the time Mr Crompton left. This was at the end of 1999.
Ms Schupelius asked Mr McDonald if he knew anyone who might be interested in the job. Mr McDonald suggested that his son Damian might be interested, and Mr Damian McDonald commenced at the beginning of 2000. He was given more hours than Mr Crompton, in fact up to 35 or 37 hours a week. During this time the Schools Internet Network Administration (SINA) had also been introduced into the system at Brighton. This involved the building of another network. It should be understood that there were, apart from SINA, two networks at the school, one for the curriculum and one for administration. Although there were a lot more computers devoted to the curriculum side, the administration side of the network continued to grow, and teachers generally were somewhat apprehensive and inexperienced when this first happened. Some teachers, of course, had sufficient skills to be able to operate the computers without much assistance but there were many teachers who did require regular assistance. Mr Sando was nominally in charge of the administration network but Mr McDonald said that he ended up spending considerable time in that area as well. As I find elsewhere, Mr Sando was not a very effective line manager or administrator. He tended to let problems work themselves out.
During 2000 there was a need for further computers because the school required a new maths room. Mr McDonald said he was asked through the principal and Mr Sando to see if there was any chance of buying second-hand computers because of financial restraints which were a concern of the school’s governing council. Second-hand computers were purchased but a lot of work was required in bringing them up to standard. Many complaints arose and a lot of work was required during this time. Mr Hutchins, who was experienced in computer hardware, was employed in about September or October 2000 as an SSO. He worked approximately 20 to 25 hours per week and was employed on a temporary casual basis.
Up to this point in time Mr McDonald claims that he was exposed to excessive workloads when he was required to repair and maintain the computers and the expanding networks. He alleges that DECS breached its obligation under the contract to provide a safe system of work. He was given no training or counselling in how he should handle the difficulties he was facing.
In June 1997 Mr McDonald successfully applied for a position as Acting Co-ordinator: Curriculum Management, Information Technology and IT Across the Curriculum. The period of appointment for this position was from 23 January 1997 to 19 December 1997.
As was common practice when taking on the role of a co-ordinator, Mr McDonald’s teaching load was reduced from five classes to four. He was now teaching Year 10 and Year 11 computer applications, Year 12 information processing and another Year 10 subject.
As I have indicated, Ms Schupelius had said back in December 1996 that she would fill the role of Co-ordinator IT internally. Mr Hisco had filled this role but went on long service leave in about the middle of 1997. Mr McDonald was invited to apply for the acting co-ordinator role. In every sense he had answered Ms Schupelius’ requirements. She believed that he could teach computing up to Year 12 and she knew that he had managed the network at Mt Barker.
In 1998 Mr McDonald began an appointment as Co-ordinator: Curriculum Management, Information Technology and IT Across the Curriculum. The period of appointment for this position was for five years, from 22 January 1998 to 22 January 2003. Co-ordinator positions were always for five years.
In approximately the second week of the 1998 school year, Ms Schupelius approached Mr McDonald to discuss his workload. At this time he was teaching four subjects and also managing the school’s computer networks. This workload had placed Mr McDonald under considerable pressure.
Following a complaint by Mr McDonald about his workload in 1998, it was agreed that his teaching load would be reduced from four subjects to two. Dropping Year 11 computer applications and possibly Year 12 information processing, Mr McDonald was left with a teaching load of Year 10 computer applications and one other subject. Obviously Mr McDonald was not managing his workload and the decision was made to reduce his teaching load.
Mr McDonald continued teaching two subjects for the next three years, while also developing a curriculum for Year 8 information and communication technology. This reduced his teaching load, the idea being that it allowed Mr McDonald sufficient time to spend on curriculum management and managing the computer networks. Although the teaching load was reduced, Mr McDonald was regularly called upon by staff and students to remedy problems with computers and other equipment. He obliged by assisting staff and students. Ms Schupelius and other senior staff were aware that he was doing this work.
At about the time Mr McDonald commenced at Brighton, the DECS technology plan involved Brighton being supplied with approximately 70 to 80 new computers. Brighton had apparently been singled out in relation to computer technology, and expensive and sophisticated cabling equipment had been installed following the amalgamation of two campuses of the Mawson High School and the old Brighton School.
Mr McDonald gave evidence of a discussion towards the end of 2000 with a friend of his, Ms Thornton, who was also a co-ordinator at the school. He referred to it as the “crunch event”. Mr McDonald said she told him she had heard that the plan was to get rid of Mr Hutchins at the end of the year and that Mr McDonald was not going to get his co-ordinator’s job back when he reapplied for it in two years time. That job, as already indicated, was due to expire in early January 2003. It was a five-year appointment that Mr McDonald had taken up in 1998. I will deal with the topic of five-year co-ordinator appointments later in these reasons.
As a result of this news, Mr McDonald said he confronted Mr Nelligan, who was in charge of finance, and asked him about what he had been told by Ms Thornton. Mr McDonald said he went to Mr Nelligan’s room and shouted and screamed at him. That much is supported by the then assistant principal Mr Potts, who heard noise coming from Mr Nelligan’s room and who asked Mr McDonald to come into his office to explain the shouting.
Mr McDonald’s case is that during this confrontation Mr Nelligan effectively affirmed Ms Thornton’s information by his silence and general nodding and muttering. Mr McDonald took this as an acknowledgment that what he was saying was correct. In short, Mr Nelligan did not deny the suggestions. Mr McDonald said this was Mr Nelligan’s normal way of dealing with things, namely, being non-committal. In any event, this alleged incident and general dissatisfaction led to Mr McDonald writing a letter of resignation to the principal. Mr McDonald said in his letter of 23 January 2001 that he had constructively dismissed himself. This started a series of discussions between Mr McDonald, Ms Schupelius and the District Superintendent, Ms Cochram. The letter stated that his resignation had arisen because of the impossible work situation that he had been placed in. He said that he intended to sue for a constructive dismissal. He claimed that his workload was excessive, that his role was never defined and that he needed to know about his future at Brighton.
Ms Thornton was called to give evidence by the defendant. She was the co-ordinator of business education at Brighton from 1994 to 1998. She had her term of appointment extended for five more years until 2003 and then it was further extended for another five years from 2003. She said that she had a positive personal and professional relationship with Mr McDonald and that they were supportive of each other in their respective roles. Her evidence illustrates how a co-ordinator can stay with the same school for more than five years, in her case fifteen years.
Ms Thornton said she recalled talking to Mr McDonald on more than one occasion about his five-year tenure. Her advice was that he should start preparing for what might happen at the end of that tenure. Ms Thornton recalled saying something to Mr McDonald about looking at the job and person specifications to see what work he was doing and checking that he was following them. If this was in late 2000, as I find to be likely, Mr McDonald had just over two years to go in his role as co-ordinator. It seems to me that something must have been said generally around the school in relation to Mr McDonald’s chances of getting a further five years, but in what exact context I am unable to say. As I have indicated, I think it likely that Ms Thornton did become privy to some information, by what means I am unable to say, and that in the most discreet possible way she attempted to make Mr McDonald aware of it. Her reference to checking the job and person specifications was prophetic and, as I find, likely to have come from some source higher up the line. It was the reason why she spoke to Mr McDonald in those terms.
Ms Thornton said she thought Mr McDonald did not really appreciate the significance of what she was saying. She said she did not particularly recall the conversation with Mr McDonald when it was suggested that she told him they were going to get rid of Mr Hutchins and that Mr McDonald was not going to get his co-ordinator’s job back. Furthermore, Mr McDonald alleged that that conversation included the information that Mr Goode was going to take over technology in the school. She said she did not indicate anything of that sort to Mr McDonald and in particular she did not tell Mr McDonald that she had inside information. She may have had a general discussion, which Mr McDonald incorrectly interpreted, but the discussion was sufficient for Mr McDonald to confront Mr Nelligan. It seems unlikely that Mr McDonald would have reacted in the way he did as early as two years before his co-ordinating role was due to finish, unless he had obtained information which he regarded as threatening his future.

Ms Thornton said she asked him how he was going with his application to have his co-ordinator’s role extended. It is unlikely that such a conversation would have occurred at that time. The most likely explanation is that Ms Thornton had more than one conversation with Mr McDonald regarding his future and has confused the time of these conversations. Mr McDonald told her that he was getting assistance for his job application from a Ms Keane, who had been deputy principal for a year at Brighton. He would not have been doing this two years before his term expired and that is why I say that Ms Thornton is confusing two separate occasions.
Ms Thornton agreed in cross-examination that the topics might have been discussed as suggested by Mr McDonald but not in the same context. She agreed that she had become aware of some kind of blow-up in Mr Nelligan’s office between Mr McDonald and Mr Nelligan at about the same time. She found that out later from Mr McDonald. She specifically said that she would not have obtained any information from Mr Nelligan. It may be that she just heard it on the grapevine from a source or sources unknown, as I have already suggested. However, I find that such a conversation with Ms Thornton, in which Mr McDonald got an inkling that he was not going to be reappointed, was the catalyst for the meeting in which he confronted Mr Nelligan.
Mr McDonald also cross-examined Ms Thornton about other employees in the business studies area, where Ms Thornton was co-ordinator. She confirmed that three of the teachers left Brighton at the end of 2003 and as a result, two business education teacher vacancies were created. Mr McDonald said he would have been happy to revert to teaching business studies, for which he was well qualified. As I say later, Mr McDonald could have filled those positions had it not been for other factors.
I will deal with the next series of events under another heading dealing with the time when Mr Potts was acting principal.
Mr Mills for DECS cross-examined Mr McDonald about what Mr McDonald had described as the “crunch event”. The “crunch event” is the discussion with Ms Thornton which led to Mr McDonald making his feelings well known to Mr Nelligan. This event took place sometime towards the end of 2000 and Mr McDonald agreed that it was a catalyst for bringing about his notice of resignation. Mr Nelligan said he could not remember the meeting and Ms Thornton gave evidence that put a different emphasis on the discussion she had with Mr McDonald. I deal with that topic later.
Mr McDonald was cross-examined about his computer expertise, and he answered that all the courses he had attended many years before were very basic and primitive and were what he described as the dark ages of computers prior to the 1990s. He acknowledged that he had some basic skills and could teach some computer skills, mainly in word processing, spreadsheets and the like, up to a certain level. He repeated that he had no network management qualifications or training other than his one year at Mt Barker where he was self-taught on the job.
Mr Mills submitted that Mr McDonald had overstated his experience in the application for co-ordinator. In that application Mr McDonald said:
I have extensive knowledge of working computing networks and a wide range of information technologies.
He then listed his experience which demonstrates his work with various software programs. Given what I have said about the way “computing” was understood at that time, I do not consider this statement to be an overstatement.
Mr McDonald was also cross-examined regarding the various tasks that he performed at Brighton. It was suggested to him that there were other staff members who attended to the problems he claimed he was required to fix. Mr Mills directed a series of questions regarding the roles of Ms Kakas and Mr Hisco. It was suggested that they did a lot of work fixing computer problems that Mr McDonald had claimed he was required to do. Mr Hisco left Brighton in the middle of 1997. With the evidence of Mr Crompton and Mr Damian McDonald, together with Mr McDonald’s own evidence, it is my view that the attempts to downgrade the actual input of Mr McDonald in his “fix-it” role were misguided. I find that Mr McDonald was regularly called upon by staff and students to solve problems arising from computing equipment.
It is clear, and I so find, that Mr McDonald was a major contributor to all this work and was regularly called upon when the SSOs were not available. It is not to the point that other teachers may have attended to these tasks in their own classrooms when they were actually teaching, and something went wrong. Mr McDonald’s tasks went far beyond that, and the management of the school knew that he was doing that work. Mr McDonald may have taken on a larger role than that for which he was originally employed, but the school took advantage of this and did not attempt to stop him until later in the piece. The school benefited from all his extra endeavours and the work he did was acknowledged to be of a high standard. He was clearly working under pressure with the knowledge of his superiors in the school. There was no risk management and no performance management of Mr McDonald at any time, except for one meeting later with Mr Mitchell. Mr McDonald was never given any training for the complex work he was performing.
Mr McDonald actually rendered invoices to the school for work done for “cleaning computers and desk top”, cleaning and maintaining equipment and working generally on the network. These invoices were submitted during 2000 and 2001 and he was paid by the school. On the face of it, there is an acknowledgement of the work done outside of ordinary hours and outside the job description. Ms Schupelius told me that payments amounting to $8,000 were made out of a fund to acknowledge Mr McDonald’s work in training and developing other staff. I find that the invoices speak for themselves and Mr McDonald was in fact paid for his “fix-it” work.
I thought that Ms Kakas in particular wanted to make points against Mr McDonald. She explained that he had used text books and other primary documents to prepare his curriculum. I would think that doing this in conjunction with one’s teaching experience was a good way of producing a satisfactory curriculum. I thought that her comments showed she was taking sides against Mr McDonald.
Ms Kakas was aware of the DECS technology plan roll-out. She said she was not aware of any accompanying risk management procedures and did not receive any training or assistance. Ms Kakas said no IT person audited or supervised the roll-out plan, and she was never performance managed at Brighton. The first time she remembers being performance managed was in 2002 when she taught at Le Fevre High School.
Ms Kakas left Brighton in 2000 after ten years at the school. She referred to the ten-year term as common knowledge on the part of teachers at that time. She had previously transferred from country South Australia.
It was Ms Kakas’ understanding that if she had taken up a position such as co-ordinator, she would be guaranteed a permanent position at the conclusion of that appointment. She believed she would be able to revert to any ordinary teacher position either at the same school or elsewhere.
Mr McDonald was also cross-examined on whether what he did in complaining in January 2001 could be regarded as a formal grievance. Formal grievance or not, the fact of the matter was that it was a serious complaint made by Mr McDonald which, as I will go on to find, was never really taken all that seriously by those in authority, either within the school or at head office. I deal with the issue of grievance in some detail later in these reasons. The exception to that attitude I find to be Mr Potts, whose evidence I will deal with shortly. He did try to get to the bottom of the problem, but when he got no satisfactory response from Ms Cochram, decided that it would probably be best to leave it for the new principal Mr Mitchell, who was commencing in July 2001. In my view, what Mr McDonald did in January 2001 when he requested the meetings with Ms Schupelius and the District Superintendent amounted to a request for a grievance procedure. The defendant can take no comfort from the fact that it was not, as they put it, a formal grievance procedure. It was formal enough to include the District Superintendent and formal notes were taken of the meetings. It put the defendant on notice that things needed to be skilfully and sensibly dealt with in a prompt manner. The defendant should have appreciated that Mr McDonald was working under stress and that he would not stop short of having his grievance fully investigated and determined. He wanted his role and the role of others to be clearly defined, and he was entitled to that.
Mr Sando
Mr Sando was Mr McDonald’s line manager both in his role as acting co-ordinator and as co-ordinator. Mr Sando agreed in his evidence that it was not Mr McDonald’s job to actually attend to the repair of computers. In relation to the second-hand computers, he said it was probably Mr McDonald’s and Mr Crompton’s idea to purchase the second-hand computers. However, Mr Sando said that he would have been the person who authorised the purchase.
Mr Sando said that Mr McDonald was given a lighter teaching load because of the difficulties of dealing with the IT area, which was new and expanding. Mr Sando said that despite the fact that he was Mr McDonald’s line manager, Mr McDonald always went above him and “went to the top”. I formed an overall impression from other evidence that Mr Sando was pretty much a person who did his own job and did not get much involved with other people’s work. It is not surprising that Mr McDonald bypassed him because Mr Sando did not attempt to line-manage Mr McDonald.
Mr Sando was in charge of the administration network. He said that Mr McDonald’s involvement in the administration network was limited to assisting staff members setting up a printer or a computer in their office. Nevertheless, Mr Sando allowed Mr McDonald to do that work, and did not ever really line manage Mr McDonald in his day-to-day work. He did nothing to stop Mr McDonald doing the “fix-it” work or make it known to all staff that Mr McDonald was not to be approached by staff seeking his assistance. He should have done this as line manager or taken it up with the principal.
Significantly, Mr Sando agreed that no trained staff were supplied for the new IT roll-out as envisaged by DECS. It was left to the staff already employed at Brighton to look after and set up the computers when the plan was rolled out. Mr Sando confirmed that he was not aware of any risk management plan in the DECS overall technology development plan. He thought that between 1997 and 2000 he and Mr McDonald worked well together. He said that Mr McDonald was a likeable person who, with the help of the technicians, got the computers up and running to a standard which he thought was as good as any around the place. He agreed that there was a continual expansion in the area of information technology in 1997 all the way through to the end of 2000.
As I have indicated, Mr McDonald should have been provided with training and then performance managed. DECS was in breach of its duty of care to provide Mr McDonald with a safe system of work. It was also remiss in providing no risk management procedures. Mr Sando was obviously aware of the difficulties faced by Mr McDonald.
Mr Sando was generally aware of a change in Mr McDonald’s attitude and behaviour at some stage but was not aware of the outcome of the meetings that took place in January and February 2001 between Mr McDonald, Ms Cochram and Ms Schupelius. He said he had no recollection of anybody telling him what went on in those meetings. It seems that the staff were simply not told, and as a result they continued to use Mr McDonald as “Mr Fix-It”. As line manager Mr Sando should have been advised of the outcome of those meetings. It was important that he should have been told of the decision to change Mr McDonald’s role in the eyes of the other staff, that he was not the person to go to with computer problems. It was part of the plan for Ms Schupelius to advise Mr Sando fully of the discussions between herself, Ms Cochram and Mr McDonald but that never occurred.
Mr Sando said that the school did not have a budget to purchase new computers. He said that all they could afford were second-hand computers. This evidence is at complete odds with the evidence later given by Mr Nelligan who blamed Mr McDonald almost single-handedly for the purchase of the new computers. Mr Sando did confirm that apart from there being no risk management in relation to the DECS technology plan, there was no performance management and no-one was brought in to manage the developing areas in the administration of the computer system or its maintenance.
Ms Cochram
Mr McDonald called Ms Cochram to give evidence. She recalled that the meetings she attended involved complaints by Mr McDonald about his workload and that the meetings attempted to resolve and manage those difficulties. She also recalled Mr McDonald raising an issue about his tenure at the school. In relation to the grievance procedures, Ms Cochram said that whilst they could take place at the departmental level, they also applied at school level. It seems that effectively she left it to the school to resolve the obvious grievance that Mr McDonald had at the time they were having their discussions. She said that Mr McDonald seemed frustrated and angry. As I will find, this frustration and anger was never resolved by those in authority and was allowed to escalate. It was a further example of the breach of duty of care by DECS.
Although Ms Cochram was broadly aware of the DECS technology plan, she was not aware of any detailed plan or risk management to go with it. She confirmed that no health checks were carried out on teachers on a regular basis. As I have said, notes were taken of the meetings which Ms Cochram attended. She agreed that the notes reflected the topics of discussion and that the main topic was the conflict of Mr McDonald’s co-ordinator’s role with the technical work which he was doing in addition. She thought that Mr McDonald was claiming total responsibility for the control of IT in the school and that he gave the impression he was the only one who knew what to do. She thought Mr McDonald saw his role as being very technically orientated and therefore it was necessary to discuss how Mr McDonald should proceed. DECS was therefore on notice that this situation needed careful handling and monitoring. Mr McDonald’s role needed to be clearly and promptly defined.
Mr McDonald may have taken on more than he should have. However, he did it with the right intentions and no-one took positive steps to ensure that he did not perform the “fix-it” work. Again he was neither risk nor performance managed. Mr Sando and Ms Schupelius were both remiss in failing to properly monitor and deal with Mr McDonald’s excessive workload, while they were both aware of his increasing workload. There were no proper systems in place.
Following the meeting that Ms Schupelius attended, Ms Cochram thought that progress had been made and that Mr McDonald’s role as co-ordinator had been clarified. In that meeting Ms Schupelius suggested that his teaching load be further reduced but Mr McDonald objected to that. Ms Cochram said there seemed to be a reluctance on Mr McDonald’s part to take on the professional development role because of the significant emphasis that he was placing on the technical side of the role. She thought that Mr McDonald seemed more comfortable dealing with the technical side of it rather than the professional development side. It appears that the end result of the meetings was that the issues regarding Mr McDonald’s role were to be managed at the school level. It was left to Ms Schupelius to take action on the outcome of the meetings. As I have indicated, that did not occur because Ms Schupelius left the school within a few days. The problems were allowed to remain unresolved and the situation deteriorated. This resulted in Mr McDonald’s continued frustration and anger. He was clearly under stress and was not appropriately managed.
Ms Schupelius
Ms Schupelius was called to give evidence on behalf of the defendant. She was an experienced principal and had also spent time within the department as Curriculum Superintendent and also as District Superintendent. She was the principal of Brighton from 1993 to February 2001. She had worked with Mr McDonald in an earlier appointment and they seemed to get on well. She knew his personality and knew, or should have known, that he required direct supervision and guidance because he had no training in the area of managing and maintaining computer networks and he was working under stress.
Ms Schupelius said that she was familiar with the DECS technology plan. She understood that it was a strategy on behalf of the State government and DECS to implement information communication technology into government schools. She confirmed that Brighton had comprehensive cabling and wiring installed in 1997 and she believed it was one of only five schools to have such equipment and cabling at that time. She had been involved in the merger between the Brighton and Mawson Campuses, which occurred at the beginning of 1997. At that time the number of computers at Brighton was increased substantially. This included both computers in the administration area and also computers used for the curriculum.
Ms Schupelius said that she was not involved in any decision to appoint Mr McDonald to the school. The fact is however that she must have welcomed him with open arms. She had a vacancy that she could not fill. A previous co-ordinator had left at the end of 1996 and Mr Hisco, who was acting as co-ordinator, was going on long service leave. Mr McDonald had obvious appeal for the role. She confirmed that he had been appointed, according to his letter of appointment, to a vacancy to teach computing and maths to Year 12 and Year 11 respectively. She spoke of a ten-year rule, which effectively meant that after a teacher had been at any particular school for ten years they were required to fill in a form for a transfer. Mr McDonald’s letter of appointment indicated that he was appointed for one year to Brighton, but she may have believed it to be a ten year appointment. Of course in 1998 he was appointed a co-ordinator for five years until January 2003.
Ms Schupelius was involved in the drawing up of the job and person specifications for the position of acting co-ordinator for curriculum management information technology and IT across the curriculum. This was the job which Mr McDonald took up following his initial appointment. Likewise she was also involved in the job and person specifications for the actual position of co-ordinator which Mr McDonald took up in January 1998.
It was Ms Schupelius who authorised Mr McDonald to approach Mr Crompton when it became obvious that Mr McDonald needed technical assistance. Mr Crompton was paid by means of the School Council allocating funds to employ support staff. Ms Schupelius said that she did not tell Mr McDonald that he was required to perform repair and maintenance work on the computers. She also indicated that she did not ask Mr McDonald to look into obtaining second-hand computers for the maths room.
It seems to me that Ms Schupelius had her vacancy conveniently filled by the employment of Mr McDonald. Provided she gave Mr McDonald sufficient support, she had someone whom she believed could manage the network and deal with the expansion in IT caused by the DECS roll-out plan. She was therefore generally supportive of Mr McDonald in all of his early work in setting up and maintaining the expanding network. She knew that he performed his work to a high standard.

Dr Kalnins relates a history which is similar to what Mr McDonald told me in his evidence. He diagnosed Mr McDonald as suffering from an adjustment disorder with anxiety, together with irritable bowel syndrome resulting from the anxiety. He believed the condition was moderate.
Dr Kalnins found a transient incapacity for work. He believed rehabilitation should take place in a school other than Brighton and with less hours and responsibilities. He thought Mr McDonald would eventually recover but he could not say when.
On his assessment of Mr McDonald, Dr Kalnins believed that employment had been a substantial factor in causing the psychiatric disability.
After Dr Kalnins had completed his report, DECS provided him with a copy of the intemperate letter from Mr Mitchell dated 3 February 2003. This was unfortunate because, as I have indicated earlier, it contained factual errors and inappropriate suggestions. Dr Kalnins then varied his thoughts although he had not seen Mr McDonald again. The variations were based on what Mr Mitchell said in his letter.
In a further letter of 10 February 2003 Dr Kalnins wrote that, based on what Mr Mitchell had said in his letter, it was really an administrative matter and not a medical one. This second letter from Dr Kalnins in no way diminishes the effect of Dr Kalnins’ professional psychiatric opinion and diagnosis which showed that employment was a substantial causative factor in Mr McDonald’s psychiatric illness.
There is no evidence as to when, after terminating his employment in April 2003, Mr McDonald would have been fit to resume normal teaching. I would think on the evidence I have seen from the medical information contained in the rehabilitation file that a period from April 2003 up until the start of 2004 would be appropriate. I will make a small deduction from the amount to be awarded for past loss of earning capacity for the possibility of private school employment, but I will make a larger deduction for the future, because I believe that such employment would be available from time to time. Mr McDonald had enjoyed working in a private school in Sydney on two separate occasions before he came to South Australia.
Assessment of damages
(i) Loss of earning capacity to date
In his statement of claim the plaintiff formulated his loss of salary at $923,902. That is an amount to cover both loss to date and for the future. It is a gross amount for 10 years from 2003 to 2013 and will have to be reduced to a net figure. As part of his final submissions Mr McDonald presented to me his detailed calculation of lost salary between 2003 and 2013 to show how the figure of $923,902 was calculated. I understand this to be on the basis that he is alleging that he did have a further ten years of tenure at Brighton after his co-ordinator’s role expired in 2003. The gross amount of $923,902 is a combination of the wages appropriate for a co-ordinator between 2003 and 21 June 2007 and then as an assistant principal from that time, that is, from 2008 until 2013. The salaries for that later period have been estimated by Mr McDonald based on past increases and a projection for the future using the same percentage increases. Mr McDonald made his calculations up to the date of filing his latest statement of claim.
It seems to me that whether or not Mr McDonald had ten years at Brighton up to 2013 is not important for this aspect. In any event, I have found that he would have continued to teach for that long at another school if not at Brighton, either as a co-ordinator or a key teacher.
The only information available regarding Mr McDonald’s tax rate is from one pay slip for the period ending 14 February 2002. That document indicates that his tax rate at that time was 31.6%. In the absence of any other information I will broadly assess his tax at 30%. Therefore on Mr McDonald’s calculation the gross amount of $923,902 up to 2013 would have to be reduced to $646,731 as a net amount, if his calculation was correct.
The claim is for damages for loss of earning capacity up until the present time, and for loss of future earning capacity between the present time and 2013. I should say at this point that the calculation of Mr McDonald’s loss has been hampered by a lack of precise information. An assessment has therefore been made using the limited material provided to me. Of necessity the assessment will be a broad brush approach and I will use rounded off figures in most cases.
I will make my calculations based on the period up to the date of judgment on the basis of the co-ordinator salary at the highest and the key teacher at the lowest. The period between the time of dismissal and the date of judgment is 263 weeks. I will therefore take the average of the two figures. If employed as a co-ordinator for the 263 weeks up to the present time Mr McDonald’s gross salary would have totalled approximately $352,000. From that the net amount would be $246,000. Both are round figures.
If employed as a key teacher for the same period the gross salary in round figures would have totalled $323,000 and the net figure $226,000. The average net loss of earning capacity for the 263 week period up to the present time would be approximately $236,000.
In relation to this period up to judgment I think that the deduction for contingencies should be moderate. I think that Mr McDonald should be compensated for most of that period either as a co-ordinator or as a key teacher. I will apply a discount of about 25% for contingencies to the average net salary of $236,000. I will then round off the amount for net loss of earning capacity to date to $180,000. The discount takes into account overall contingencies, such as poor health or some accident or injury, or some change in career. It also takes into account the possibility of employment in a private school.
I would award a lump sum in lieu of interest based on an average rate of interest of 6% over that period. I take account of prevailing interest rates and the rate this Court has been allowing on funds deposited into court. The lump sum in lieu of interest I allow on the amount for past loss of earning capacity is $27,000.
Mr McDonald’s calculations for future loss of earning capacity are based on his becoming an assistant principal in 2008. He also submitted that he could have reached the office of principal. There are several contingencies which must be considered. The first is whether Mr McDonald would have continued as a teacher beyond the present time, the second is whether he would have continued at Brighton or at some other school in the role of co-ordinator or as key teacher and finally whether there is any likelihood that he would have been promoted to assistant principal at Brighton or elsewhere.
I think it is most likely that Mr McDonald would, had it not been for the series of events which occurred at Brighton, have continued teaching possibly as a co-ordinator at some other school, but if at Brighton, then probably only in the role of a key teacher. The fact is that at Brighton there were vacancies for business studies teachers, for which Mr McDonald was well qualified. Had it not been for Mr Mitchell and his desire to be rid of Mr McDonald, it is my view that Mr McDonald would have at least taken up one of those vacant positions at Brighton towards the end of 2003 or early 2004, assuming of course that his health allowed him to do so. I find that he would at least have taken up a position as a key teacher in another school towards the end of 2003. He may have been a co-ordinator in another school and I will allow for that in the overall contingencies for the future.
After 2003 it is my view that it is almost impossible to predict whether Mr McDonald would have been promoted to assistant principal. It is difficult to assess this because, as already indicated, Mr McDonald was never able to properly go about his job as co-ordinator at Brighton because he was overburdened with the roll-out of the DECS technology plan and the associated work required in building up and maintaining new networks.
Mr McDonald claims that between 2003 and 2008 he may have been eligible for promotion to assistant principal. I have to take into account several contingencies in assessing this possibility. First the availability of such a job, secondly the location of such a job and whether it was suitable, and thirdly Mr McDonald’s chance, based on his record, of achieving the promotion.
I think the most significant matter standing in the way of any promotion would relate to Mr McDonald’s personality. He showed from early days that he was prepared to take on the powers that be and his attitude generally was very much to speak his mind at all costs on any matter on which he held strong views. That may not have made him the best candidate for assistant principal but I will make an allowance for the possibility of that occurring. I think it is a possibility that he would have achieved such a promotion and I will increase the allowance for loss of future earning capacity above that which I would allow for a co-ordinator. Mr McDonald has a strong work ethic and had it not been for the unfortunate situation in which he was placed he would have certainly strived for promotion. I do not believe that Mr McDonald would have reached the office of principal. From 2008 to 2013 Mr McDonald is claiming that he would have achieved both the office of assistant principal and principal. As I have indicated, first a job had to become available and secondly he had to be the best candidate. It is for these reasons that I will allow something for the possibility of him becoming an assistant principal but nothing for the chance of becoming a principal.
(ii) Loss of future earning capacity
In relation to overall contingencies, Mr McDonald was aged 55 years at the time he constructively dismissed himself in April 2003. He told me that he would have continued to work until age 65, which takes him to 2013. The reason he says he would have continued to work for those years is because he had accumulated very little by way of superannuation entitlements. The pay-out he received on cessation of his employment was $31,662 after $6,257 in tax was withheld. This is a relatively low figure for the time he had been employed as a teacher and I can see some force in his submission that of necessity he would have continued to work as long as he could.
However, there were some additional barriers in Mr McDonald’s continuing career path, in my view. These included the fact that he had suffered from some health problems which first manifested themselves in Scotland in 1995. These problems were related to stress and anxiety from his work. The problems occurred again during his time at Mt Barker in 1996 and then, from the history given earlier as part of these reasons, it is apparent that Mr McDonald was affected by stress and anxiety from August 2001 and then from the middle of 2002 until he dismissed himself in April 2003. Mr McDonald still takes medication for stress and anxiety. I think a considerable discount has to be made in addition to normal contingencies for the risk that Mr McDonald’s psychological wellbeing could have deteriorated in any event.
A document was tendered which allows calculations to be made precisely in relation to gross wages for key teachers and co-ordinators between 11 April 2003 and 1 October 2007, that is, for past loss of earning capacity. From that point on, of course, it is speculation and Mr McDonald’s calculations are based on projecting those figures forward.
The calculations I have made are based on what the average salary increase was between 2003 and 2007, namely 3.07% per annum. I have therefore used this same rate to project salaries forward between 2008 and 2013. Although it is far from precise, it is the only basis I can use to predict future salary rates.
Using the projected rate of salary increase of 3.07% per annum, if Mr McDonald were to work as a co-ordinator from 2008 through to 2013, his gross salary would be $386,000 in round figures. The net salary would be $270,000. If he were to work as a key teacher throughout the same period his gross salary would be $354,000 in round figures and the net figure $248,000. The average of these net figures is approximately $259,000. If he were to be appointed as an assistant principal, the average gross salary for Assistant Principal categories 1 and 2 would be approximately $401,000. The net figure would be $281,000. I will use the average between key teacher and co-ordinator and then add something for the chance of Mr McDonald being appointed to assistant principal some time within the five year period ending 2013. I do not regard this as a remote chance and I do not regard it as a probability.
For future contingencies, it is my view that a much greater deduction than the earlier figure of about 25% for past loss of earning capacity has to be made for the calculation of future loss of earning capacity. I have decided that a reduction of 50% for overall contingencies for the future is fair to both parties. I have therefore reduced the net figure of $259,000 to $130,000. The deduction again takes into account both overall contingencies and the increased chance that Mr McDonald would find work during the next five years, including work in a private school, from time to time. It may be as a relief teacher for short periods of one or two terms or it may involve longer periods of employment. Mr McDonald may also seek employment in an area other than teaching.
I will allow a further lump sum of $11,000 to cover the chances of appointment as assistant principal. Therefore I allow the sum of $141,000 for future loss of earning capacity.
(iii) Loss of superannuation benefits
In relation to lost superannuation entitlements, Mr McDonald has claimed that he has lost $107,000 to 2013. The basis for this figure is unclear. He was paid $37,919 less $6,257 for tax withheld when he terminated his employment. The statement which records the payment indicates that it was an eligible termination payment (ETP) from his superannuation fund. As Mr McDonald was over 55 years of age at the time the payment was made and his employment had ceased, it is most probably the case that it was an ETP which crystallised when Mr McDonald purported to constructively dismiss himself. It amounts to $31,662 net.
The amended defence and the defendant’s oral submissions plead that any damages awarded to the plaintiff should be reduced by the amount of the termination payment made by the defendant. This is a reference to the fact that Mr McDonald received an ETP. It was agreed and no submission was made to the contrary, that if damages for loss of future superannuation entitlements were awarded, the amount would simply reflect the total of Mr McDonald’s future compulsory contributions up to his retirement, discounted for contingencies. This would have been about 9 per cent of his corresponding salary. The ETP already received by Mr McDonald is irrelevant in my view because it was his entitlement on retirement. Mr McDonald indicated that he was not claiming interest on any amount awarded for the future, and he is not entitled to interest on the future amount.
The parties tendered by agreement some figures to form the basis for calculations for future loss of entitlements. I reject the claim in the defence to have future loss of earning capacity reduced by the amount of the ETP.
Superannuation contributions in early 2003 were $196.85 per fortnight. That equates to 8.97% of the salary Mr McDonald was being paid at that time. For the 263 weeks to date I calculate the loss of those contributions at $25,000 in round terms, again using the average between a co-ordinator and a key teacher. Applying the same discount for contingencies, I would allow the sum of $19,000 in round figures for loss of superannuation contributions. I would allow a lump sum in lieu of interest on that figure of $2,850.
For the future, projecting the figures to 2013 the figure for loss of superannuation contributions comes to approximately $29,000. This figure is again based on the average projected salary of a co-ordinator and key teacher with an adjustment to allow for the possibility of appointment as an assistant principal. Applying the same discount rate for future contingencies to that amount gives a figure of about $14,500. Therefore the total loss of superannuation benefits will be allowed at $33,500 plus $600 for interest on loss of past benefits, making a total of $34,100.
(iv) Loss of long service leave entitlements
Mr McDonald claims $14,423 for the loss of long service leave up to April 2003 which he used to cover his absence from work. He also claims $24,028 for the loss of future long service leave entitlements. Pursuant to s 19 of the Education Act, Mr McDonald would have accrued approximately 9 weeks of long service leave on the date he ceased employment with DECS. That equates to a net figure of approximately $7,000 based on the salary of a key teacher in April 2003. I will award Mr McDonald a lump sum of $3,500 for the loss of that benefit.
For the period from 2003 to 2013, the calculation comes to a figure of $14,500 based on an entitlement up to 2013 of approximately 15 weeks. This figure is based on the average net salary of a key teacher and a co-ordinator. I will award the sum of $5,000 for loss of future long service leave entitlements. The overall amount for loss of long service leave entitlements is $8,500.
(v) Claim for overtime
Mr McDonald claims an amount for overtime which he says relates to work done outside of normal hours, less the amount of overtime he was actually paid. As I have indicated in my reasons he was not paid overtime but paid $8,000 out of a fund to provide for further education to the other teachers. That is how it was recorded in the books according to Mr Nelligan, although it was invoiced differently. Mr McDonald has made a claim for overtime for work in maintaining computer and network systems in the sum of $120,000.
After the trial concluded, further submissions were heard in relation to the claim for overtime. Mr McDonald submitted that his claim for overtime is supported by r 26 of the Education Regulations 1997 (SA), which reads as follows:
26Positions not covered in an award
For special work performed in a temporary capacity by a teacher to which no award applies, the Minister may determine what remuneration may be paid to that teacher in respect of that special work.
The effect of his submission was that the extra work he performed by way of computer and network maintenance was work for which this section created an entitlement to payment.
DECS submitted that there was no evidence that the work performed by Mr McDonald was either “special work” or was “performed in a temporary capacity”. DECS submitted further that Mr McDonald was a teacher to which an award applied and therefore no scope existed for the operation of r 26. There was also no evidence to suggest that the Minister had made a determination in respect of any “special work”.
As I have indicated in my reasons, teachers are employed as professionals and as professionals they are expected to work out of ordinary teaching hours. Whether this is in marking papers or preparing materials for classes, the fact is, as I have heard from the various witnesses, that all teachers work a considerable amount of overtime but without extra pay. Even though some of Mr McDonald’s work was out of ordinary teaching hours, it seems to me that the same principle should apply and therefore I find that he is not entitled to any payment for overtime. I therefore reject that part of his claim. There is, in any event no evidence to assist me in relation to whether it was “special work” or “performed in a temporary capacity”.
(vi) Claim for lunch duty
Mr McDonald makes a claim for $14,400 for lunch duty. Further submissions were also heard regarding this claim. Mr McDonald produced a document entitled “General School Procedures (DECS)”. He submitted that this document reduced into writing and confirmed evidence he had given in relation to this issue. I did not admit this document into evidence as it was produced after the time relevant to these claims. It was downloaded from the internet, raising a question as to its status. It is my opinion that the document would have added little to the evidence already before me.

Mr McDonald submitted that the requirement to perform lunch duty contravened s 607 of the Workplace Relations Act 1996 (Cth), which reads as follows:
607Meal breaks
An employer must not require an employee to work for more than 5 hours continuously without an unpaid interval of at least 30 minutes for a meal.
This submission did not deal with s 608, which reads:
608Displacement of entitlement to meal breaks
Section 607 does not apply in relation to particular employment of an employee while any of the following operates in relation to the employee in relation to the employment:
(a)     an award;
(b)     a workplace agreement;
(c)     an industrial instrument prescribed by the regulations.
As I have already found, Mr McDonald was employed under the Teachers (DECS) Award and as such would, on the face of it, seem to be subject to the displacement.
In any event, it is again part of custom and practice in the teaching profession that teachers in a school will contribute to the supervision of students during lunch and recess breaks. This is part and parcel of a teacher’s professional duty: see Sim v Rotherham Metropolitan Borough Council. I reject Mr McDonald’s claim on that basis.
Mr McDonald claims two final heads of damage. They are “loss of dignity and reputation as a skilled teacher and educational leader” and “solicitor’s costs of action”.
(vii) Solicitor’s costs of action
The issue of solicitor’s costs will be dealt with in the event of any application for costs after judgment is entered in this matter.
(viii) Loss of dignity and reputation
The issue of dignity and reputation is dealt with in Addis and in Johnson v Unisys [2003] 1 AC 518. The cases stand for the principle that an employee is not able to recover damages for the manner of his or her dismissal, even if it affected reputation, caused mental distress or injured feelings. Baltic Shipping Co v Dillon (The Ship Mikhail Lermontov) (1993) 176 CLR 344 is authority for the proposition that damages for disappointment and distress are not recoverable unless within the exceptions outlined by Mason CJ at 362 where His Honour said:
First, damages for injured feelings were recoverable in the action for damages for breach of promise of marriage. Secondly, it is beyond question that a plaintiff can recover damages for pain and suffering, including mental suffering and anxiety, where the defendant's breach of contract causes physical injury to the plaintiff. Thirdly, there are cases in which damages for breach of contract have included compensation for the physical inconvenience suffered by the plaintiff in certain circumstances. They include the physical inconvenience suffered by a plaintiff when the defendant's train did not carry him to the stipulated destination and that suffered by a plaintiff who purchased property with defects not revealed in the surveyor's report upon which the plaintiff relied. Fourthly, courts have included compensation for an element of subjective mental suffering where the plaintiff has sustained physical inconvenience as a result of the defendant's breach of contract and the mental suffering is directly related to that physical inconvenience. Finally, there are other cases in which the plaintiff has recovered damages for distress, vexation and frustration where the very object of the contract has been to provide pleasure, relaxation or freedom from molestation. (footnotes ommitted)
It is my view that this case is not an exception to the general rule stated in the Baltic Shipping decision and not within any of the five specific exceptions referred to by Mason CJ.
Contributory negligence
As I have pointed out, towards the end of the trial an amendment was made to the defence. This amendment pleaded that if DECS was liable for breach of a contractual duty for any cause of action which arose in whole or in part after 16 August 2001, any damages should be reduced on account of the plaintiff’s contributory negligence. The particulars of contributory negligence alleged against Mr McDonald are that prior to resigning he failed to advise DECS that it was a condition of him continuing in his employment that DECS investigate the matters raised in documents forwarded by Mr McDonald to Ms Hyde.
The second allegation of contributory negligence is that prior to his resignation he failed to advise DECS that it was a condition of him continuing in his employment that it complete an investigation into the matters raised with Ms Hyde. The final allegation is that Mr McDonald failed to take up a teaching position at Heathfield which was made available to him in 2003.
For the reasons which I have already covered in my discussion regarding the handling of the grievance matter generally and in particular at the time the matter was raised with Ms Hyde, I reject any suggestion that there could be any contributory negligence by Mr McDonald in this regard.
The fact that the defendant is alleging contributory negligence against Mr McDonald, claiming that he failed to tell his employer that it was a condition of his continuing employment that DECS should investigate and complete the investigation into matters that he had been complaining about since February 2001 is quite perverse. In view of my findings as to the handling of the grievance, I reject the claim for contributory negligence based on those allegations.
The Heathfield job, as is now acknowledged, was not appropriate. It contemplated Mr McDonald being involved in network managing once again. It is a principle of the law of dismissal, including constructive dismissal, that a party is entitled to take into account matters which are relevant but which at the time were unknown to them. In this regard Mr McDonald did not know what the job entailed but the later information made it clear what it did entail and that it was an inappropriate job to offer to Mr McDonald. I reject this suggestion as part of any claim for contributory negligence. In short, there will be no reduction for contributory negligence.
Final assessment of damages
Mr McDonald’s claim is therefore restricted, in my view, to assessing damages on the basis of lost earning capacity to date together with any associated benefits from April 2003 up to the date of judgment and then for the loss of future earning capacity and any future benefits. These calculations, as I have indicated, are subject to the reductions I have mentioned for contingencies. For the reasons I have given, it is my view that there are adverse contingencies that must be allowed for in the future. The positive contingencies in favour of Mr McDonald are that I believe he has a strong work ethic and will therefore find some employment over the next five years.
My assessment of Mr McDonald’s damages is as follows:

$

(1) Past loss of earning capacity 180,000.00

(2) Lump sum in lieu of interest for past loss of earning capacity 27,000.00

(3) Future loss of earning capacity 141,000.00

(4) Past loss of superannuation entitlements 19,000.00

(5) Interest on past superannuation entitlements 2,850.00

(6) Future loss of superannuation entitlements 14,500.00

(7) Loss of long service leave entitlements 8,500.00

392,850.00

I will enter judgment for the plaintiff in the sum of $392,850.00.

$
(1)	Past loss of earning capacity	180,000.00
(2)	Lump sum in lieu of interest for past loss of earning capacity	27,000.00
(3)	Future loss of earning capacity	141,000.00
(4)	Past loss of superannuation entitlements	19,000.00
(5)	Interest on past superannuation entitlements	2,850.00
(6)	Future loss of superannuation entitlements	14,500.00
(7)	Loss of long service leave entitlements	8,500.00
392,850.00