Murphy v State of Victoria
[2015] VCC 1153
•28 August 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-11-01027
| LEONIE JANINE MUPRHY | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18, 19, 20, 21, 24, 25, 26 August 2015 | |
DATE OF JUDGMENT: | 28 August 2015 | |
CASE MAY BE CITED AS: | Murphy v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1153 | |
REASONS FOR JUDGMENT
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Subject: CONTRACT
Catchwords: Resolution of workplace dispute by agreement – terms of the agreement included payment of a lump sum, appointment to position and reinstatement of various employment entitlements – breach of the agreement alleged by failure to appoint the plaintiff to agreed position, failing to upgrade that position and failure to provide agreed employment benefits – alleged refusal to provide position of employment despite plaintiff presenting for employment – alleged verbal abuse and attacks by servants and agents of the defendant – specific performance – damages for breach of agreement – general damages for diminished value of work skills – aggravated and exemplary damages
Cases Cited:Murphy v State of Victoria (Ruling No 2) [2015] VCC 1069; Codelfa Construction Pty Ltd v Rail Authority of New South Wales (1982) 149 CLR 337; Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784; Goldman Sachs JB Were Services Pty Ltd v Nikolich (2007) 163 FCR 62
Judgment: The plaintiff’s claim fails. Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Mr J R M Tracey | Victorian Government Solicitor |
HIS HONOUR:
Preliminary
1 The plaintiff, Mrs Murphy, alleges that over a period of time, in particular from 2003, while she was employed in administrative duties within various departments of the Victoria Police (“the Police Force”), she was subjected to bullying and harassment by several of its members and employees.
2 In September 2004, Mrs Murphy alleges she collapsed at work and was unable to continue her employment duties. She was off work for a period.
3 After negotiation, an Agreement, dated 23 March 2005[1] (“the Agreement”) was entered into by Mrs Murphy and Ms Christine Nixon, Chief Commissioner of Police, on behalf of the defendant (“the State”). The Agreement included various provisions, including that the State would pay Mrs Murphy $30,000 with a denial of liability in respect of the conduct complained of, reinstate her to a position within the Police Force, upgrade that position, credit her with various employment entitlements, provide training and personal development, and reimburse medical and like expenses.
[1]Exhibit A
4 She returned to work in November 2005. Mrs Murphy alleges that despite payment of the $30,000, the State failed to abide by the Agreement; alternatively, breached its terms. She further alleges, despite presenting herself for employment between February 2007 and May 2009, she was refused the agreed position of employment, was verbally abused and physically attacked by persons within the Police Force.
5 She claims specific performances, damages for breach of contract and “general damages being the diminished value of the plaintiff’s work skills …”.
6 This proceeding has had a long and convoluted history. So much is evident from the large number of orders made in this Court, and the Court of Appeal, since the Writ was issued in March 2011. At one point, Mrs Murphy’s Statement of Claim was struck out and summary judgment granted to the State. The Statement of Claim was reinstated by the Court of Appeal.[2] On other occasions, various aspects of Mrs Murphy’s claim were dismissed. It is unnecessary for me to revisit these various orders, save to say that the Amended Statement of Claim dated 7 March 2014, and filed in accordance with the Orders of the Court of Appeal of 20 March 2014, is the pleading relied upon by Mrs Murphy in this trial.[3]
[2]Murphy v State of Victoria (Ruling No 2) [2015] VCC 1069
[3]See Tab 1, Volume 1, Joint Court Book (“JCB”)
7 For the reasons which follow, the plaintiff’s claim fails and the proceeding should be dismissed.
The Pleadings
8 By her Amended Statement of Claim filed in accordance with the Orders of the Court of Appeal of 20 March 2014, Mrs Murphy pleaded the various provisions of the Agreement. Paragraph 5 of the document contains the allegations of breach of the Agreement and pleads:
“5. In breach of the agreement the defendant failed to:-
(a)give to the plaintiff the position of administrative assistant and pay her in accordance with the agreement apart from some payments made from time to time;
Particulars
Particulars of payments will be made after discovery.
(b)failed to upgrade her to a Victorian Public Service Grade 3 Range 3 effective from 1st April 2004;
(c)failed to re-credit her 22 days sick leave, 17 days recreational leave, 1 day flexi leave;
(d)failed to assist her with appropriate training and professional development in accordance with the Victorian Police Performance Enhancement Program Policies and Procedures;
(ii)failed to cooperate in the plaintiff’s performance of her obligations under the agreement.
(iii)failed to pay her superannuation contributions as required by law.”
9 Further, the Amended Statement of Claim pleaded:
“6From 5 February 2007 and in or about 14 May 2009 the plaintiff repeatedly presented herself for employment in accordance with the agreement but the defendant persistently by its servants and agents refused to provide any position of employment to her and the plaintiff was verbally abused and physically attacked by servants and agents of the defendant who sought to exclude her from any workplace operated by the defendant during said period.”
10 I take the intention of paragraph 5(a) of the Amended Statement of Claim to refer to the Position Description OFF SUPP 2225, as referred to in paragraph 3(a) of the Agreement. Further, the Victorian Public Service Grade referred to in paragraph 5(b) of the Amended Statement of Claim should be Grade 2, Value Range 2, to accord with paragraph 3(b) of the Agreement.
11 By its Defence, the State denies the allegations of breach of Agreement and says:
“5.…
(a)…
(i)The Plaintiff was appointed to the position of administrative assistant (position description OFFSUPP 2225), effective on 1 January 2005.
(ii)In 2008, position description OFFSUPP 2225 was affected by a restructure of the Unit of Victoria Police in which the plaintiff was employed.
(iii)As a result of the restructure in 2008, the Plaintiff accepted the position of property/administration officer (position description OFFSUPP 3346) at Endeavour Hills Police Station, effective on or about 22 October 2008.”
12 The State denied there was any breach of the other terms of the Agreement.
The evidence
13 I permitted the plaintiff to tender a Witness Statement[4] as the basis of her evidence-in-chief. That tender was permitted in the interests of the efficient disposition of the proceeding, although it was admitted under cover of the objection by Mr Tracey, for the State, that much of the material contained in the Witness Statement was inadmissible. Further, the Statement was admitted without the admission of various documents referred to within it. I advised Mrs Murphy they would have to be tendered separately. I made a Ruling allowing a number of documents from 13 volumes of Court Books provided by the plaintiff, into evidence[5].
[4]Exhibit E
[5]Murphy v State of Victoria [2015] 1113
14 Further, Mrs Murphy sought to admit into evidence Witness Statements of Messrs Cameron, Hunn, Bishop, Paris, Ryan and Brown-Greaves;[6] alternatively, Mrs Murphy sought to call those witnesses to give evidence. Having regard to the contents of the Witness Statements, I ruled the evidence irrelevant and inadmissible.
[6]Items 18, 19, 20, 21, 22 and 23 – Volume 1 – JCB
15 Further, Mrs Murphy sought to admit into evidence a “full chronology”,[7] a 200-page document said to be a diary recording of various events over a long period of time. I refused a tender of the document into evidence but permitted Mrs Murphy to refer to it in the course of her evidence-in-chief.
[7]Item 24 – Volume 1 – JCB
16 At the outset, I took the liberty, with Mrs Murphy’s permission, to ask her a number of questions concerning her claim. This was undertaken in an attempt to understand the basis of the claim, in particular, the alleged breaches of the Agreement. Following that process, I permitted Mrs Murphy to give evidence of her own accord, attempting where possible to confine her evidence to the matters relevant to the pleadings. As may be evident from the transcript, this was no easy task.
17 The summary of the evidence relevant to the pleaded issues is as follows:
18 Mrs Murphy commenced employment with the Police Force in 1999. She worked in various departments, in particular, in office management and administration. She undertook a number of certificates and courses to enhance her work skills. In 2001 or 2002, she commenced work with the Divisional Intelligence Management Unit (“DIMU”). In September 2003, she worked for a period in the Equity and Diversity Unit (“EDU”).
19 In 2003, she claims to have been subject to workplace bullying. This included humiliation, intimidation and aggression by various members of the Police Force. She, and others in the Force who were subject to the same behaviour, complained to the Chief Commissioner of Police in March 2004. In September 2004, she claims she collapsed at work and was unable to continue. She was distraught both physically and emotionally. Because of physical problems, she was unable to take public transport to work. She left employment on WorkCover.
20 As a result of her complaints, negotiation took place to resolve the issues in the workplace. It was always her intention to return to the Police Force, as she enjoyed the work. A member of the Police Union, Emily Castle, was appointed to assist her in the negotiation process. As a result, the Agreement was drawn and executed. The Agreement provided for the following:
· That she would be “appointed” to the position of administrative assistant (Position Description OFF SUPP 2225) in the Human Resource Department of EDU. The position was to be effected from 1 January 2005. Mrs Murphy did not know why the position was backdated.
· Victoria Police were to initiate a “work value upgrade” from her current Victorian Public Service Grade 2, to the base of a Victorian Public Service Grade 2, Value Range 2, effective 1 April 2004.
· She was to obtain a credit of sick leave, recreational leave and flexi leave.
· Victoria Police were to assist with appropriate training and professional development in accordance with the Victoria Police Performance Enhancement Program policy and procedures.
· She was to be reimbursed for relevant medical and like expenses.
· She was to receive payment for psychological counselling services.
21 In fact, Mrs Murphy did not return to work until 25 November 2005. She said she was encouraged to return to work at the Dandenong Police Station in the Finance Unit under a Return to Work Plan. She worked four hours, one day a week. She went along with this. The head of the Finance Unit at the Dandenong Police Station, Mr McCluskey, refused her computer access. She was to undertake a reconciliation of the Telecom account. Reading the material was difficult as it was small. This affected her eyesight. Her hours increased to four hours, two days per week. Mr McCluskey was unsympathetic to the problem with her eyes.
22 The atmosphere at Dandenong Police Station was difficult for her. The employees were unhappy and complained. There was a whispering campaign. She thought she may have been the subject of it. In January 2006, Mr McCluskey was moved. This was not a successful beginning to her Return to Work Plan. Eventually, when another person headed up the Finance Unit, she was given computer access. Under that person, the Unit was happy. She continued working and her hours increased.
23 She was told that she had been overpaid the sum of $8,978.73. There was correspondence going back and forth regarding this. At one point she was removed from the Police Force payroll. She was told she should have been filling out time sheets from the beginning. There was a dispute about where her WorkCover Certificates of Capacity were to be sent. The sum which was alleged to have been owed increased to $13,030 in November 2006. There was no explanation for the increase. Eventually, through her approaches to politicians, including the Police Minister, Mr Cameron, and Mr Peter Ryan, the amount said to be owed was waived.
24 There was a meeting on 18 May 2006 with various members of the Police Force. Although not present, Mrs Murphy said she was told by a Ms Jacqui Rothica (an employee of the insurer’s claims agent, Wyatt Gallagher Bassett) that the meeting discussed that she should find other employment.
25 At this time, she was also told by an Inspector Sandra Makepeace that the EDU no longer existed and she would not therefore go back. She was very distressed by this, as that is where she thought she was to return.
26 In July 2006, she was moved to the Narre Warren Police Station where she was also expected to undertake administrative and office work. Her hours were increased to 20 hours per week. In May 2006, she had been advised that a new unit had been created, Equity and Conflict Resolution Unit (“ECRU”).
27 In September 2006, by notice, her WorkCover payments were terminated.
28 In November 2006, Mrs Murphy finished work at the Narre Warren Police Station. She took annual and sick leave until January 2007. Around this time, she met with a police officer, Inspector Eda Whiting, and was provided with a number of position descriptions within the Police Force. She was advised to apply for these positions. These positions did not fit the category OFF SUPP 2225.
29 She commenced work at ECRU in February 2007. She was taken to a desk in a hall. The area was a mess and she had to clean it up. Someone had left a copy of the Police Gazette on her desk with a picture of Debbie Sonin, the person responsible for causing the workplace difficulties in 2003.
30 On one occasion, she was approached by Mr Peter Knight who asked her, “If [she] was terrified”. He was rude and pointed his finger at her. She was upset and distressed and went home. This was on 6 February 2007. She received a telephone call from Inspector Makepeace. She went to see a psychiatrist, Dr Hogan, and was very distraught. She returned to work the next day at the request of Inspector Whiting. Mr Knight came and apologised and said he was sorry.
31 At this time, she was working 28 hours per week.
32 It was suggested to her by an Inspector Phil Green that she had falsified time sheets and should be charged under the Crimes Act.
33 At work, she was doing very little. It was intended she learn the tasks of an employee, Karen Woodard.
34 She did not get on with Inspector Green. He intensely questioned her on a range of personal issues and suggested she should apply to Centrelink for a pension. She was distressed and disturbed by this. On another day, he threw an envelope containing a document at her and said that if she went outside the terms of that document, he would escort her off the premises. He was hostile and slammed doors in her face. He said she should not be working there.
35 She took leave in May 2007 and upon her return, her desk had been removed. It was in another room near the cleaner’s office. There was plaster all around. There was no one else in the room and no one spoke to her. A new supervisor, Darrel Clifton, came to see her. She was to be placed in a new role as telephonist and receptionist to the whole division. She told Mr Clifton this was not her role. It was suggested she increase her hours to 30 hours per week and not work on Fridays.
36 The area was finally reorganised and rebuilt as a reception area. It was a good area. The telephone work was at times difficult. There were suicidal people ringing up. She handled phone calls relating to the Kerang train derailment. Sometimes wives of members rang up, upset. It was difficult to get these calls taken by the appropriate person. Mr Clifton was hostile and aggressive.
37 There was a review at some stage of Mrs Murphy’s position as OFF SUPP 2225. She received letters and emails. She was told she had to apply for the telephonist reception job.
38 On one occasion, she had applied for a day off but the application had been misplaced. When she came to work, she was told she had to go home and she was to be placed on redeployment for three months and then was to leave the Police Force. She was marched off the premises by Mr Keith Colliver. She had difficulty with her back and was limping. This was May 2008. She was told she no longer had access to the doorways nor computers.
39 In September 2008, she was contacted by the Re-deployment Group (“RDG”), and a meeting was sought. She was told there would be a number of positions that she could apply for, including that of a Roster Property Officer. She had not done this work before. She told the meeting that she should not be on re-deployment duties. Further positions were emailed to her. She applied for quite a number. Some were in the country in inaccessible places. She also applied to the Mounted Branch. She received no response to these applications and no interviews.
40 She was told there was a position at the Endeavour Hills Police Station as a Roster Property Officer. It was agreed she could be trained into the position. She had an interview and was accepted. She told them she could not work full time. She had to assist another clerk within the division. Initially, the role went well. She cleaned and sorted the property office. She audited the books. The people there were pleasant.
41 However, things changed when Senior Sergeant Cecily Dyos came to run the station. She was known as “The Assassin”. Eight members applied and were granted leave. She did not get on well with Sergeant Dyos, who was aggressive and rude. Things went downhill. Fault was found with her work. At one point, she went to the Dandenong Police Station and worked with a person who was unfriendly. A number of allegations were made against her which were untrue.
42 At one point, Sergeant Dyos sat down with her and made a range of allegations. To these she answered “false accusation”. She was told by Sergeant Dyos she was a terrible employee. Disciplinary proceedings were taken against her and she was provided with documents. She was told she had to go to a meeting about the disciplinary proceedings. A meeting was held and her husband was there. She was given another room with no windows but just a chair and desk.
43 There was another meeting on 14 May 2009. She had been on sick leave. She spoke to her cousin in the Police Academy, a Mr Karl Feltham, who told her that the disciplinary proceeding had been improperly conducted. The meeting of 14 May 2009 was between herself and her husband, Sergeant Dyos and Inspector Kitchen. It was recorded. She was provided with “Minutes of Meeting” by Sergeant Dyos. These had been pre-prepared. The meeting took several hours. In the course of the meeting, Mrs Murphy mentally “slipped away” and did not know what had happened. She was upset and distressed. She could not face going back to work and did not return after this incident.
44 In terms of the particular provisions of the Agreement which she said was breached, in relation to Clause 3(c), (d) and (e), she was unable to say whether she had been reimbursed for these sums. On occasions, she was paid additional holiday and recreation leave, then they were taken out of her entitlement. This happened a lot and resulted in an audit. To this day, she is not certain whether she received these amounts.[8]
[8]Transcript (“T”) 46
45 In relation to Clause 3(c), she said Inspector Phil Green did not allow her to participate in any learning models.[9] She was not included in meetings. She went to one development meeting in relation to Beyond Blue.
[9]T46-47
46 In relation to Clauses 3(g) and (h), she accepts that her medical and like expenses, and psychological treatment has been paid by the WorkCover insurer.[10]
[10]T47-48
47 At the conclusion of all of the above evidence, I asked Mrs Murphy to detail, given all the matters to which she had referred, how it was she said the Police Force had breached paragraphs 3 (a) and (b) of the Agreement, or failed to abide by those terms. She gave a long and convoluted answer:
Q:“How does your treatment over the years from 05 to 09, as you have described in some detail to me, point to a breach of those two clauses?---
A:So even within the two clauses, but overall, I’m saying that the reference in my statement of claim, being the particulars on p.3, insofar as it’s implied, it is implied by law to give business efficacy to the agreement in accordance with the principles and I’ll quote, set out in Codelfa Construction Pty Ltd v Rail Authority of New South Wales. It’s also breached, in particular, given the good faith and implied terms with paragraph (a), Equity and Diversity Unit, and position OFFSUP 2225, unbeknown to me, in which I had operated in December 2003 to September 2004, when I went on WorkCover, and to January 2005, when it went out of existence. Before the deed was executed in March 2005, it could not be complied with, the functions having been divided into two units. There was no intention to recreate either of those and the behaviours of the employees of the newly-made ECRU were in breach of the entire deed and particularly of recital B. As to paragraph (b), no payments were made in accordance with the deed at all. The pay officers were not advised at any time of its existence, or its terms. Far lesser amounts were paid under the WorkCover provisions and wrongly demanded back twice, once being in 2006 for varying sums up to $13,030. Then a second time in 2010, requesting that I paid back $19,000 after I had left the Endeavour Hills police station and being told they would not provide a safe workplace to return to. No payments at all have been paid since 2009, and very varying payments from 2006 through to 2009. As to, if you wish, overall, they have acted in bad faith in making all workplaces which I attended unsafe for me to attend. It started in 2003 and it has not as yet ended.
Q:Yes, is that all you wish to say in response to that?---
A:That is all I can say for the moment, thank you, Your Honour.”[11]
[11]T139, L10 – T140, L15
48 I permitted Mrs Murphy to tender a Witness Statement sworn 30 July 2015.[12] Much of the content of the Statement is irrelevant to the issues in this trial. I will summarise what is relevant as follows:
[12]Exhibit E
· After a meeting of 7 February 2005, there were significant changes to the EDU and the role previously undertaken by Mrs Murphy had altered. No attempt was made to assist her to return to work in accordance with the Agreement. Inspector Sandra Makepeace failed to implement Mrs Murphy’s entitlements in Clauses 3(a) to (h) of the Agreement.
· Mrs Murphy had difficulties travelling to Police premises in Jolimont Road, East Melbourne.
· In her employment at the Dandenong Police Finance Unit (DPFU) from October 2005, she was not permitted computer access and faced hostility from the manager, Mr McCluskey.
· In November 2005, Mr McCluskey ordered the plaintiff to leave a computer update course in breach of Clause (f) of paragraph 3 of the Agreement.
· In December 2005, Inspector Makepeace failed to advise the Police WorkCover Unit Mrs Murphy was to be paid in accordance with Clause (b) of paragraph 3 of the Agreement. The Agreement should have been made available to that WorkCover Unit.
· Around May 2006, Inspector Makepeace made payment of Mrs Murphy’s salary dependent upon submitting timesheets for hours worked. She was removed from the Police payroll.
· In May 2008, Mrs Murphy was advised her position with ECRU no longer existed and she was provided with two Position Descriptions, OFF SUPP 2225, and invited to apply for those positions. She refused to do so, advising Mr Keith Colliver that she “owned” the role of OFF SUPP 2225 in EDU in accordance with the Agreement.
· In June 2008, Mrs Murphy was “escorted” from the Organisational Wellbeing Unit (OWU) by Mr Keith Colliver. She was then placed on “redeployment” for 90 days.
· She was referred to the RDU to identify a suitable position for her within the Police Force.
· She was prevented from filling her position, OFF SUPP 2225, by a range of members of the Police Force, because of “unlawful discrimination”, in particular those in charge of the ECRU.
· In July 2008, she was informed by letter from Mr Keith Colliver that the position, OFF SUPP 2225 located in the ECRU had been abolished following review. She was thus offered another position, OFF SUPP 33316.
· She was offered various other positions, including as a roster/property officer at Endeavour Hills Police Station, OFF SUPP 3212.
· It was the intention of Inspector Makepeace and Commissioner Christine Nixon, by reference to their subsequent actions, that Mrs Murphy was not to be employed in the Victoria Police. They colluded by appointment Mrs Murphy to a non-functioning position in a non-functioning unit.
49 At the recommencement of proceedings on 21 August 2015, I allowed Mrs Murphy the opportunity to give any further evidence relevant to the issues. She commenced a long and rambling diatribe on matters relating to her employment with the Police Force which were irrelevant to the issues in this proceeding.[13] None of this evidence was of any assistance.
[13]T167 and ff
50 Mrs Murphy was then cross-examined. She ceased work for the Police Force in September 2004, when she was working at the EDU. She did not return to work until November 2005, on reduced hours. She acknowledged that, according to Victoria Police records, she was the “owner” of the position OFF SUPP 2225 effective from 1 January 2005.[14]
[14]Attachment KS-25 to the Witness Statement of Kiera Stanbury – exhibit 1
51 After the Agreement was signed, Mrs Murphy returned to work at the Region 5 Finance Unit at Dandenong, performing duties involving telephone records. She remained there until July of 2006 and then moved to Narre Warren. She was at Narre Warren until November 2006, and then took extended leave.
52 In February 2007, she returned to the EDU, working 28 hours per week. That unit became the ECRU. She then went to Jolimont Road and worked in the Organisational Wellbeing Division (OWD). She then worked at Endeavour Hills as OFF SUPP 3346, working in the property office. There she encountered Senior Sargent Dyos. She worked at Endeavour Hills from October 2008 until May 2009.
53 By letter dated 24 June 2009, Mrs Murphy was advised by Inspector Miles that the Police Force was considering terminating her employment.[15] By letter dated 29 July 2010, she responded to that letter.[16] The reason she was terminated was that she was no longer able to carry out her employment.
[15]Annexure KS 33 to the witness statement of Kiera Stanbury – Ex 1
[16]Annexure KS 37 to the witness statement of Kiera Stanbury – Ex 1
54 Mrs Murphy was then asked questions about the training she received. That included:
· Completion of a questionnaire relating to bullying and conflict in 2007
· Competency assessment and training – 2007
· Firearms handling course
· Onsite training at Dandenong in relation to property officer position.
55 Mrs Murphy accepted that she had undertaken the firearms course and had had onsite training at Dandenong in relation to her job as a property officer. She accepted she had completed a questionnaire on bullying.
56 Mrs Murphy was taken to an annexure to the Statement of Kiera Stanbury, KS‑2.[17] The document is a payroll document which records the position of various Police Force employees. It records Mrs Murphy as “2VR2” and the “owner” of that position from 1 January 2005, in accordance with the Agreement. She said:
“Yes, they would have backdated that information onto the sheet.”[18]
[17]Part of exhibit 1
[18]T236, L5-10
57 Mrs Murphy was then taken to clause (b) of the Agreement which required the Police Force to “initiate a work upgrade for the employee from her current Victorian Public Service Grade 2 to the base of Victorian Public Service Grade 2 Value, Range 2. This upgrade will take effect from 1st April 2004.”[19] She replied:
[19]T236, L12-16
A:“I was a Victorian Public Service grade 2 effective November 2003. It wasn’t updated because Sergeant Nesdale refused to sign it and I was paid at a level PAO1 during the secondment 2003, 2004. Then again when I returned to EDU I was a 2, value range 1, but they were still paying as a PSO1. It wasn’t until midway through 2004 that they, through communication with Inspector Sandra Makepiece and Rose Vilala of region 1 and Rose Vilala of region 1 that the finally got me up as a grade 2.
Q: You were paid as a grade 2?---
A: From that day on.
Q:In respect to the period 1 April 04 onwards?---
A:No, they backdated that to 1 April. I can’t recall without going to the document of Rose Vilala. But it did take quite a long time for me to get the upgrading that the VPS under the CPS you have already graded in November 2003.
Q:Let me just put this proposition to you, Mrs Murphy: that you were treated by Victoria Police as a grade 2 value range 2 for the period from 1 April 2004 onwards, weren’t you?---
A:I couldn’t put that into a definite yes without looking at volume 1.
Q:Look, I understand that you can’t do that?---
A:I will take that as being acceptable that they’ve backdated that anyway, but I should have been a VPS2 and a grade 1 from November 2003 and the position that I applied to I understood to be a VPS2 grade 1 as a secondment until the signing of this deed.” [20]
[20]T236-7
58 It is difficult to understand Mrs Murphy’s answers in this part of the evidence, however, if she did not accept that she was appointed to the position OFF SUPP 2225 effective 1 January 2005, and that her work value upgrade led her to VPS Grade 2, Value Range 2, as from 1 April 2004, then at least she did not deny either proposition.
59 Mrs Murphy was then taken to a letter which she sent to Mr Keith Colliver dated 19 May 2008.[21] In that letter, she said:
“Further to our meetings, and the changed versions and dates on documentation which you have supplied, as you have acknowledged I have been appointed to the position of administrative assistant (Position OFF SUPP 225) in the Human Resources Department, Equity and Diversity Unit. … .”
[21]Annexure KC9A to the Statement of Mr Keith Colliver – exhibit 2
60 The letter further notes:
“I was unable to work when the agreement was entered into. Payment was backdated over a period during which I had been unable to work. … .”
61 A letter from Mr Colliver to Mrs Murphy of 27 June 2008 was put to her.[22] The letter reads:
“As you are aware the review of the Organisational Wellbeing Division Administration functions has been completed and two new Divisional support roles created (OFF SUPP 3315 and OFF SUPP 3316). A matching process was established and you indicated that you would not be seeking to be matched to either of the new positions.
For your information, I have enclosed a copy of the Position Description for OFF SUPP 3316. Can you please confirm in writing, or via email, that you do not wish to be matched to this position.
Following your confirmation of the above, you will be referred to Force Redeployment Group for a duration of three months. Force Redeployment Group will assist you in identifying suitable positions (at the level) for you to be referred to for the purpose of determining your suitability for potential transfer. … .”
[22]Annexure KC10 to the Statement of Mr Colliver – exhibit 2
62 In response, Mrs Murphy said it was against the law to place anyone without a full-time working capacity in forced redeployment.[23]
[23]T241, L1-3
63 Mrs Murphy accepted she did go to RDG and eventually, she was pleased to accept the position of property administration officer at the Endeavour Hills Police Station.[24] She found the role very pleasant until the arrival of Senior Sergeant Cecily Dios. She took the position at Endeavour Hills because her previous position, OFF SUPP 2225, no longer existed. This was after a review.
[24]T241, L25
64 Mrs Murphy was asked about whether she was reimbursed for the various leave entitlements referred to in sub-paragraphs (c), (d) and (e) of the Agreement. She appeared to agree that reimbursement occurred on and off over a period of three or four years.[25]
[25]T244, L27
65 Evidence was then given by Mrs Murphy’s husband, Mr Murphy. I permitted the admission of his Statement into evidence,[26] under cover of objection by Mr Tracey that much of the material contained in the Statement was irrelevant and inadmissible. Mr Tracey’s submission is correct. Much of the material contained in the Statement is inadmissible, and very little of it is relevant. A summary of those parts which are relevant is as follows:
[26]Exhibit F
· In September 2008, Mr Murphy received a call from Ms D Anapaz from RDG seeking to arrange a meeting. He reminded her that the position which Mrs Murphy was to occupy under the 30 March 2005 Agreement had not been made redundant.
· At a meeting of 17 September 2008, Mr Murphy attended a meeting with a number of persons employed by the RDG to which Mrs Murphy had been placed on 4 September 2008. He again said that under the Agreement, the position to which Mrs Murphy had been appointed remained unless the deed was altered. At that meeting, Mrs Anapaz said there was a position as a property officer at Endeavour Hills. Mr Murphy replied that would be good for his wife as it was close to home. At that same meeting, his wife said that she had no training or experience as a property officer and was only able to work 30 hours per week.
66 Mr Murphy also gave viva voce evidence. Like his wife, much of his evidence was centred upon a wide range of disputes and allegations concerning the conduct of various members of the Police Force, both before and after the signing of the Agreement. There was little of his evidence which was relevant to the issues in dispute.
67 He referred to the fact that the rehabilitation provider, that is the company charged with providing rehabilitation services to Mrs Murphy when she was under a WorkCover Claim, were not provided with a copy of the Agreement so that they could rehabilitate her into the position referred to in the Agreement.
68 He further gave evidence about a meeting in May 2009 coinciding with the termination of Mrs Murphy’s employment. He said that the behaviour of the police officers present at the meeting was aggressive and terrifying. He said their behaviour amounted to criminal behaviour. Various allegations made, in particular by Senior Sergeant Dyos, were without foundation and wrong. These included Mrs Murphy taking a day off and attending a medical appointment.
69 Evidence was then given by two witnesses on behalf of the State, Ms Kiera Stanbury and Mr Keith Colliver. The evidence of each was comprised of Witness Statements and various annexures.[27]
[27]Exhibits 1 and 2
70 Ms Stanbury is employed as an assistant manager of the Payroll Services within the Human Resource Department of the Police Force. She had no personal knowledge of Mrs Murphy and her Statement was principally comprised of information and documents obtained from the Police payroll records. A brief summary of the relevant matters is as follows:
· Mrs Murphy “occupied” the position of OFF SUPP 2225 from 8 December 2003.
· She “owned” that position from January 2005.
· The position OFF SUPP 2225 was abolished on 5 February 2009.
· In August 2005, the EDU included a role OFF SUPP 2225 and the new division, ECRU, also included that role.
· Mrs Murphy was appointed to the position OFF SUPP 2225 on a date after 13 April 2005 but before 14 September 2005, and this appointment was backdated to 1 January 2005.
· The personnel file showed no evidence of Mrs Murphy disputing that appointment.
· The Police records indicate Mrs Murphy was employed as VPS Grade 2.1 from 9 September 2004 until 15 May 2005 and as VPS Grade 2.2 from 16 May 2005 onwards.
· Mrs Murphy returned to work on 26 September 2005 within the EDU.
· The records show Mrs Murphy attending various training courses and assessments including:
§ Competency assessment system assessor – 23 August 2007
§ Management of underperformance training – 23 August 2007
§ ECRU awareness – 31 December 2007.
· Mrs Murphy was appointed to the position OFF SUPP 3346 at Endeavour Hills effective 22 October 2008. The records indicate Mrs Murphy accepted this role.
· The Statement explains various overpayments of salary to Mrs Murphy, and the decision of Mr Ryan, Minister for Police and Emergency Services, to waive the overpayment, said to total $19,063.00.
· Mrs Murphy did not return to work after May 2009 and all her leave entitlements were exhausted by September 2009.
· The personnel file contains correspondence (KS33 – KS40) relating to the termination of Mrs Murphy’s employment. The documents would indicate that the termination occurred because Mrs Murphy was unable to return to work, apparently due to a workplace stress claim. By letter dated 6 September 2010, her employment was terminated.
· A subsequent claim in the Magistrates’ Court seeking worker’s compensation was rejected.
71 Mr Keith Colliver also provided a Witness Statement. The Witness Statement was accompanied by various documents. A summary of the Statement is as follows:
· In 2005, he was the manager of the Human Resources Department for the Police Force.
· He was asked to re-credit some leave entitlements to Mrs Murphy which he was told was in line with the Agreement.
· In April 2005, he was advised Mrs Murphy had been re-credited 22 days’ sick leave and 17 days’ annual leave. According to documents attached to his Statement, that re-crediting was undertaken (KC-2, KC-3, KC-4 and KC-5).
· Flexi leave was to be undertaken in conjunction with Mrs Murphy’s manager.
· From February 2007, Mrs Murphy commenced work at the ECRU, which was part of the Organisational Wellbeing Division (OWD). In April 2007, Mr Colliver met with Mrs Murphy to discuss looking for jobs closer to her home. She had previously been on WorkCover.
· In December 2007, a restructure was undertaken within OWD. This involved a restructure of administrative support roles within the OWD, including OFF SUPP 2225.
· At a meeting on 13 May 2008 between Mr Colliver and Mrs Murphy, Mrs Murphy indicated that she believed she “owned” her position in ECRU.
· At a meeting on 14 May 2008, Mrs Murphy indicated she would not be seeking to be “matched” to a new position, and that she still held her old position in ECRU.
· On 30 May 2008, Mrs Murphy was advised that if she refused to be matched to a new position, she would be referred to the RDG.
· Mrs Murphy was permitted to return to work during that redeployment process.
· By letter dated 2 July 2008 (KC-12), Mrs Murphy was advised that her previous position, OFF SUPP 2225, had been abolished and a new role created, OFF SUPP 3316.
· In the RDG process, Mrs Murphy was offered and accepted a position as property/administration officer (OFF SUPP 3346) at Endeavour Hills Police Station. This role commenced 22 October 2008.
· Mrs Murphy was offered and attended training courses, including:
§ Firearms handling
§ Property officer training course
§ There were various other training courses and opportunities offered to her (KS-18)
§ A Beyond Blue training course was discussed, but Mrs Murphy could not attend as it was for supervisors only.
· Mr Colliver became frustrated with the difficulties in accommodating Mrs Murphy in the workforce. At one point, she threatened to “come after me in my home”.
· Mr Colliver produced two documents, Policy and Procedure Training Guide[28] and Victoria Police Training and Education Policy Document[29]. The first was in effect until 2007, and the second after that. Each detailed training and qualification details for Police Force employees.
[28]Exhibit 3
[29]Exhibit 4
72 Mr Colliver was cross-examined. He was taken to an “Issue Cover Sheet”, the original of which was signed by him, amongst other persons, in August 2008. The document contained the following paragraph:
“Mrs Murphy previously occupied Position OFF SUPP 2225 which was attached to the former Equity and Diversity Unit (EDU). The EDU was housed in building C of the Victoria Police Centre and operated as a stand-alone work unit reporting directly to a deputy commissioner. Mrs Murphy left work in March 2004 after submitting a WorkCover claim (reference 210422886) citing injury from her work at EDU. She recommenced work on 18 October 2006 as part of a graduated return to work plan performing administrative duties in Region 5. When she returned to work, position OFF SUPP 2225 had effectively ceased to exist given the closure of the EDU and creation of ECRU which included that unit being accommodated in leased premises in East Melbourne. Ms Murphy has not returned to her pre-injury hours or job description. This return to work period was complicated through Mrs Murphy being overpaid during the compensable WorkCover period with later approval being sought from the Police Minister to waive the recovery of the overpayment by Victoria Police. Ms Murphy now includes this mistake as evidence of incompetence and unfair treatment by Victoria Police. … .”
73 Mr Colliver gave evidence that he had not read the Agreement until recently. It was a confidential Agreement and he was informed by Inspector Makepeace that all of the obligations under the Agreement had been met.
74 Mr Colliver was taken to various emails (KC-20) which noted that he told another employee that Mrs Murphy had been sacked, which was an outcome he had been hoping to achieve four years ago. He said he sent these emails out of frustration given the difficulty in trying to accommodate Mrs Murphy within the Police Force.
Was there a breach of the Agreement?
75 This has been a difficult trial to manage. Any trial involving a self-represented litigant is difficult as a careful and considered balance needs to be struck between, on the one hand, providing that litigant with sufficient assistance to enable him or her to bring before the Court evidence and submissions so the Court may properly understand the case being brought, as against, on the other hand, losing impartiality by providing legal advice and assistance to the point of becoming an advocate for that party. This trial was further complicated as Mrs Murphy was unwilling to confine her evidence and arguments to the issues raised in her Amended Statement of Claim.
76 When this proceeding was first issued, Mrs Murphy’s Statement of Claim alleged deceit, fraud, acting in a manner designed to cause damage, false representations, intentional infliction of personal injury, negligence and breach of contract. Aside from the issue of breach of contract, these claims were misconceived, and struck out on a range of occasions by this Court, and the Court of Appeal. The sole surviving cause of action relates to breach of the Agreement. Throughout the evidence and submissions, Mrs Murphy could not be dissuaded from raising a range of matters relating to these misconceived causes of action. Such matters included bullying, intimidation and maltreatment by various members of the Police Force commencing from 2003, issues relating to overpayment of wages and demands made in relation thereto, WorkCover and conciliation issues, the requirements as to timesheets, workplace counselling and time away from work.
77 These Reasons will concentrate only upon the allegations as to breach of contract.
(a)Failing to appoint Mrs Murphy to the position of administrative assistant (OFF SUPP 2225) in the Human Resources Department, Equity and Diversity Unit as from 1 January 2005.
78 It is clear from the evidence of Kiera Stanbury that according to the police personnel file concerning Mrs Murphy, that after the signing of the Agreement, she was reappointed to the position OFF SUPP 2225, to the EDU, and that that was backdated to 1 January 2005.[30]
[30]See KS-2, KS-5
79 Further, those records show that Mrs Murphy was paid a salary and other entitlements consistent with the position OFF SUPP 2225 as from 1 January 2005. In cross-examination, Ms Stanbury was not challenged as to this evidence.
80 I further accept from her evidence that at no time did Mrs Murphy complain to the Police Force that when she was reappointed after the Agreement was signed, that she was appointed to anything other than OFF SUPP 2225. Mrs Murphy was unable to work and on WorkCover benefits until November 2005, as a result of a claimed WorkCover injury. There is no basis to suggest that the fact that she could not work because of injury constituted a breach of the Agreement either over the period from March to November 2005, nor subsequently when she worked reduced hours. The Police Force could not be expected to provide her with a full-time OFF SUPP 2225 position when she could not work because of injury.
81 By letter dated 19 May 2008,[31] it is clear Mrs Murphy acknowledged that she had been appointed to that position.
[31]Annexure KC-9A to Mr Colliver’s Statement
82 In the course of Mrs Murphy’s evidence-in-chief, I asked her to specifically address how she said there was a breach of Clauses 3(a) and (b) of the Agreement.[32] It is difficult to know what to make of her answer. Setting aside for a moment her submission that there were implied terms of the Agreement (which I will deal with shortly), her evidence appeared to be that her position “went out of existence” and that “the functions having been divided into two units”.
[32]T139, L10 – T140, L15
83 This claim stands in stark contrast to all of the documentary evidence, in particular the Witness Statements of Ms Stanbury and Mr Colliver, but also in the Declaration of Surplus Employee.[33] True it was that the EDU where Mrs Murphy had previously been employed, was under review from as early as 3 February 2005.[34] In fact this subsequently became the ECRU. A firm of management consultants, Three M Consulting, completed a review in February 2005. However, there is no evidence to suggest that that review led to a breach of the obligation in the Agreement to appoint Mrs Murphy to the OFF SUPP 2225 role.
[33]List of Admissible Documents – Volume 6, Tab 519
[34]See List of Admissible Documents – Volume 1, Tab 152
84 Mrs Murphy’s further argument is that the Agreement contained various implied terms, including a term that the State act in the utmost good faith. While it would be reasonable to infer that there was an obligation of good faith on the part of the State, its servants and employees to implement the terms of the Agreement, there is nothing from the evidence to suggest any other terms were implied into the Agreement. Further, there is nothing in the pleadings to that effect.
85 Mrs Murphy made reference to a speech given by Chief Justice Marilyn Warren, AC, to the Judicial College of Victoria on 15 October 2009. The speech was concerned with the application of the good faith doctrine in commercial contracts. Her Honour said:
“Briefly stated, the standard of conduct required by good faith obligations has been described to include reasonableness in the broad sense, a duty to act reasonably in the performance and enforcement of a contract, and as requiring a party ‘not to act capriciously’, that is to say, requiring a party to act for a proper purpose. … .”
86 Further:
“Generally speaking, recent decisions at first instance and in intermediate Courts of Appeal (particularly the New South Wales Court of Appeal) have recognised that an obligation of good faith in the performance and execution of contractual obligations and powers may be implied as a matter of law, as a legal incident of a commercial contract. Alternatively, other decisions at first instance, and by the Victorian Court of Appeal, have approached the issue as one of implication in fact. … .”
87 I accept without reservation these statements by her Honour. I accept that there was an implied condition in the Agreement that Police Force members, and others employed by the Force, act in good faith to implement the terms of the Agreement. I am satisfied from the evidence that that is indeed what took place.
88 Mrs Murphy further referred to Nikolich v Goldman Sachs JB Were Services Pty Ltd[35] and Goldman Sachs JB Were Services Pty Ltd v Nikolich.[36] I do not see the principles established by those cases as having application to the facts of this proceeding. Those cases concerned whether damages could be awarded for a breach of a contract of employment. However, the facts and principles established are readily distinguishable.
[35][2006] FCA 784
[36](2007) 163 FCR 62
89 Subsequently, it is clear from the evidence that the position OFF SUPP 2225 was abolished on 5 February 2009 as a result of a restructure within the Force. After a period in which the Police Force sought to redeploy Mrs Murphy into another position, eventually a position was found as a property officer at the Endeavour Hills Police Station. This administrative position was described as OFF SUPP 3346. Mrs Murphy occupied that position from 22 October 2008. It is also clear from the evidence that both she and her husband welcomed this position as it provided employment closer to home. In fact, she said she enjoyed her time there until a police officer, Senior Sergeant Dyos came, and there was disagreement.
90 Even accepting that this was a different position from that described in the Agreement, it is clear that the Agreement contemplated that Mrs Murphy be “appointed” to that position. The evidence shows that she held varying different positions until Endeavour Hills. It could not be suggested the Police Force was required to retain a whole unit and its precise status and position so as to abide the Agreement. I take “appointed” to mean to place into the position from the time ordained by the Agreement. It would be impossible that such an appointment would be in perpetuity, and regardless of all the contingencies of life as may affect both the Force and Mrs Murphy. It would be a different situation if there was evidence of conduct by members of the force, from the outset, to frustrate the appointment of Mrs Murphy to the administrative position contemplated by the Agreement. That was not the case.
91 Mrs Murphy had various periods of time off work on WorkCover benefits because of a Depressive Disorder and when she resumed employment in November 2005, she was working reduced hours. Those hours increased to about 28 hours per week by 2009. It could not be suggested that the State was in breach of the Agreement because Mrs Murphy was not able to fulfil a full-time position. Its obligation was only to appoint her to a position, and I am satisfied from the evidence that is precisely what occurred, and that reasonable efforts were made to accommodate her medical issues.
92 The onus is upon Mrs Murphy to prove there was a breach of Clause 3(a) of the Agreement. Not only has she not, on balance, proved there was a breach, I am satisfied that in fact the State abided by that terms of the Agreement.
(b) Work Value upgrade to Victoria Public Service Grade 2, Value Range 2
93 Again, it is clear from the evidence of Ms Stanbury and Mr Colliver that Mrs Murphy was upgraded and paid to the level VPS Grade 2, Range 2. Again, that was acknowledged by Mrs Murphy by letter to Mr Colliver dated 19 May 2008.[37]
[37]Annexure KC-9A to the Witness Statement of Keith Colliver – part of exhibit 2
94 Mrs Murphy has not provided any evidence that the position was otherwise.
95 It is clear from the HRM Salary Rates[38] that she was classified and paid to that level from May 2005. Further, by reference to the HRM payslip history,[39] on 11 June 2005, an amount of $5,967.26 was paid, being the arrears due. The Return to Work Plan signed by Mrs Murphy in October 2005 notes that she was returned to the position VPS-2.[40]
[38]Annexure KS-7 to the Witness Statement of Kiera Stanbury – part of exhibit 1
[39]Annexure KS-8 to the Witness Statement of Keira Stanbury – part of exhibit 1
[40]Annexure KS-9 to the Witness Statement of Keira Stanbury – part of exhibit 1
96 None of this evidence of Ms Stanbury was challenged in cross-examination.
97 Again, in answer to questions by me, Mrs Murphy was unable to identify how a breach of this provision had occurred.[41]
[41]T139, L10 – T140, L13
(c) Failure to re-credit sick leave, recreation leave and flexi leave
98 In the course of her evidence, I asked Mrs Murphy as to how sub-clauses 3(c), (d) and (e) were breached. She said the following:
A:“I say that they - initially they did not get reimbursed but was finally reimbursed in November of 2005, or sometime thereabout following my having to chase that up, it was put on. And then each time a new party came into the payroll area it was taken off, all my entitlements were removed, they thought it was an error. I had to then reapply and chase up, having it put back on again through Inspector Sandra Makepeace and others. That occurred so many times I can’t remember if I did or didn’t have it on, and a Darryl Clifton, Superintendent Darryl Clifton organised for a Terry Carr to audit my sick leave and annual leave prior to them removing me out of ECRU, because he felt I had too much, he was upset that there was so much annual leave there, I might go on working for four days with an annual leave day off forever. So he had it all fully audited again and I then had to sign off again as to whether it was on or off.
Q:What was the end result? Were you paid the 22 days sick leave, the 17 days recreation leave and the one day flexi leave?---
A:I have not as yet taken the flexi leave. The annual leave and sick leave were on and off, to a state of confusion.
Q:What does that mean? Does that mean you don’t know whether you’ve been paid?---
A:I couldn’t remember where I got to with it. Yes, it then became too difficult to follow as with the pay situation. I - excuse me - was aware that nobody wanted to do my PEP reports.”[42]
[42]T132, L21 – T133, L16
99 According to the evidence of Mr Colliver, he was directed by a memorandum to re-credit leave entitlements to Mrs Murphy.[43] On 27 April 2005, Mrs Murphy was re-credited with 22 days’ sick leave and 18 days’ annual leave. As to re-crediting of one day of flexi leave, that was a matter to be handled by an employee’s manager. While Mr Colliver was unable to say whether this had been achieved, there was no evidence from Mrs Murphy that there was a failure to re-credit one day of flexi leave.
[43]See Annexure KC-1 to the Witness Statement of Keith Colliver
100 I am not satisfied there was any breach of the Agreement in relation to leave entitlements.
(d) Failure to assist with appropriate training and development
101 The Agreement required the defendant to “assist the employee with appropriate training and professional development in accordance with the Victoria Police Performance Enhancement Program Policy and Procedures”. Mrs Murphy alleges the Police Force failed in its obligation in this regard.
102 In evidence, Mrs Murphy said the following:
A:“Inspector Phil Green did not allow me to participate in any of the learning models or case management roles. They were doing their Certificate IVs and he did not recognise nor enquire as to whether I was interested in doing that and my understanding, when I left the unit, having done almost a year of courses that I would progress and fall into that and do those learning models. I was not included in any meetings within the ECRU and the only one item that I was told I was going to, that I would’ve gone to with interest being a Beyond Blue meeting, as to the effects of people with depression and work‑related issues, was cancelled as I was leaving the building and I was told not to go by message, Superintendent Darryl Clifton had put it on my computer overnight that I was not to attend.
Q:Do I understand you to say that you did not receive appropriate training in professional development in accordance with PEP policy and procedures?---
A:Yes, that’s correct, Your Honour.”[44]
[44]T133, L25 – T134, L12
103 Neither party produced the Victoria Police Performance Enhancement Program Policy and Procedures. Mr Tracey, for the defendant, tendered two documents, Police Personnel Management Policy and Procedure Training Guide[45] and Victoria Police Training and Education Policy document.[46] The former was said to be in operation until 2007, and the latter afterwards. Mr Tracey was unable to advise me as to whether these documents constituted the Victoria Police Performance Enhancement Program Policy and Procedures. Mrs Murphy called no evidence on the subject, save to say that she did not receive the requisite training.
[45]Exhibit 3
[46]Exhibit 4
104 I accept that Mrs Murphy did undertake a range of training, including:
· A firearm handling course
· A property officer training course.
105 I am further satisfied a range of further training opportunities were offered to her, in accordance with the Witness Statement of Mr Colliver.[47]
[47]See paragraph 32 and emails KS-18
106 It is difficult to know whether the courses undertaken, and the courses offered complied with the Victoria Police Performance Enhancement Program Policy and Procedures. It is reasonable to assume that such procedures were in place to assist employees having sufficient training to enable them to properly compete the tasks involved in their areas of employment. There is no specific complaint by Mrs Murphy that she was unable to complete her work through any inadequate training.
107 The evidence of Mr Colliver was that it was a matter for training to be discussed between the employee and his or her manager as part of the professional development assessment system. It is clear that in at least 2009, a report as to Mrs Murphy’s professional development assessment was undertaken.[48] In that document, Mrs Murphy refers to career goals, capacities and skills. There is no complaint of want of training. She was offered and obtained training in relation to her work as a property officer at Endeavour Hills. There was also reference to a firearms handling course, which she undertook.
[48]Annexure KC-17 to the Witness Statement of Mr Colliver – exhibit 2
108 Despite Mrs Murphy’s general complaints of failure to offer training and development, the complaints lack any specificity, in particular, there is no evidence that whatever the failures in relation to training were, that they reflected in any inability to undertake the tasks of her job. It is reasonable to infer that training and development is utilised to assist an employee undertaking the tasks of their position, and to assist in development to accede to higher levels. Even if there was a breach of this provision, I am not satisfied any such breach reflects in any loss of those opportunities, and therefore in damages.
(e)Failure to co-operate in performance of obligations and to pay superannuation contributions
109 Paragraph 5(ii) and (iii) of the Statement of Claim allege the defendant:
“(ii)failed to cooperate in the plaintiff’s performance of her obligations under the agreement.
(iii)failed to pay her superannuation contributions as required by law.”
110 There is simply no evidence by Mrs Murphy that there was any breach of these provisions. To the extent that she alleges the Force and its members failed to co-operate with her in the performance of her obligations under the Agreement, I reject that proposition. As I have said, it appears to me from the evidence that various Police members, while no doubt being frustrated with attempting to accommodate Mrs Murphy back into the workforce, did co-operate in meeting the obligations under the Agreement. There is simply no evidence that the defendant failed to pay her superannuation contributions.
Conclusions
111 For all of the reasons stated, I am not satisfied that there was a breach of the Agreement by or on behalf of the defendant. Even accepting it could be argued there was some failure to comply with the training procedures as required by the Victoria Police Performance Enhancement Program Policies and Procedures, I am not satisfied that any damages flow as a result.
112 Paragraph 6 of the Amended Statement of Claim alleges that despite Mrs Murphy presenting for employment, she was refused any position and was abused and attacked in, and excluded from the workforce. This paragraph would seem more appropriate to a cause of action in workplace negligence in failing to provide a safe system of work. However, to the extent it alleges there was a breach of the Agreement, I am not satisfied it is made out.
113 Accordingly, the plaintiff has not proved her case. The plaintiff’s case thus fails.
114 I shall hear from the parties as to costs.
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