SAPONJSKI v Department of Education
[2014] WADC 17
•7 FEBRUARY 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: SAPONJSKI -v- DEPARTMENT OF EDUCATION [2014] WADC 17
CORAM: STAUDE DCJ
HEARD: 21 JANUARY 2014
DELIVERED : 7 FEBRUARY 2014
FILE NO/S: CIV 2020 of 2012
BETWEEN: DRAGOLJUB SAPONJSKI
Plaintiff
AND
DEPARTMENT OF EDUCATION
Defendant
Catchwords:
Practice and procedure - Pleadings - Statement of claim - Application to strike out - Whether statement of claim fails to disclose reasonable cause of action
Practice and procedure - Defendant's application for summary judgment - Whether claim is for damages for personal injury arising out of the course of employment - Whether pt IV div 2 of the Workers' Compensation and Injury Management Act 1981 applies
Legislation:
Workers' Compensation and Injury Management Act 1981
Result:
Application for summary judgment dismissed
Application to strike out statement of claim allowed
Action dismissed
Representation:
Counsel:
Plaintiff: In person
Defendant: Mr G Raithel
Solicitors:
Plaintiff: Not applicable
Defendant: State Solicitors Office
Case(s) referred to in judgment(s):
Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia & Grivell (1999) 74 SASR 246
Alison v Bega City Council [1995] NSWIRComm 175; (1995) 63 IR 68
Baltic Shipping Co v Dillon (1993) 176 CLR 344
Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144
Commonwealth Bank of Australia v Barker [2013] FCAFC 83
Delooze v Healey [2007] WASCA 157
Easling v Mahoney Insurance Brokers Pty Ltd [2001] SASC 22; (2001) 78 SASR 489
Eastwood v Magnox Electric plc [2005] 1 AC 503
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Johnson v Unisys Ltd [2003] 1 AC 518
Keays v JP Morgan Administrative Services Australia Ltd [2012] FCAFC 100
Mooney v Commissioner of Police, NSW Police Service (No 2) [2003] NSWADT 107; (2003) EOC 93-281
Rogan‑Gardiner v Woolworths Ltd [No 2] [2010] WASC 290
Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWSC 217; (2008) NSWLR 559
Shevill v Builders' Licensing Board (1982) 149 CLR 620
Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Western Excavating Ltd v Sharp [1978] QB 761
STAUDE DCJ:
Introduction
The plaintiff, Mr Saponjski, is aggrieved by the circumstances in which he came to resign his position as a primary school teacher with the defendant only a few weeks after being appointed to it in February 2011. He has brought an action for damages in connection with his employment.
The defendant contends that the facts pleaded do not disclose a reasonable cause of action and that the writ and statement of claim should be struck out. Alternatively, the defendant contends that the action is a claim for damages for personal injuries arising out of employment from which the plaintiff is precluded by operation of s 93K of the Workers' Compensation and Injury Management Act 1981.
The defendant's application to strike out the writ and statement of claim, alternatively for summary judgment, was heard in chambers. Because the plaintiff lives in Serbia and is not legally represented he was given leave to be heard by telephone.
The plaintiff is at an obvious disadvantage. He is unrepresented and English is his second language. He has taken some legal advice but not, it seems, from any legal practitioner in Western Australia. As an unrepresented litigant he is entitled to reasonable assistance from the court: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 (Kirby P). The court is required to take special care in discerning whether or not a viable cause of action is disclosed. It must be alert to the possibility that beneath inadequately expressed and irrelevant material there may be an arguable case: Glew v Frank Jasper Pty Ltd [2010] WASCA 87, [10].
The power to terminate an action summarily should be exercised sparingly and should not be used unless the plaintiff's claim is so clearly untenable that it cannot possibly succeed. The defendant should not be vexed by a futile claim: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 130.
Background
The defendant's application is dated 10 July 2013. The application seeks an order that the writ be struck out pursuant to O 4A r 5(1)(e) of the Rules of the Supreme Court 1971 (RSC) on the grounds that it:
(a)is defective, not containing any indorsement or a statement of claim;
(b)discloses no reasonable cause of action;
(c)is an abuse of process; and
(d)would otherwise be unjust to the defendant to allow the writ to stand.
The application seeks an order that the action be dismissed.
The reliance on RSC O 4A is mistaken. The power to strike out a defective writ is to be found in RSC O 6 r 1(2). The power to strike out a statement of claim or an indorsement of claim is found in O 20 r 19.
Pursuant to directions that were given by the principal registrar on 9 September 2013 the plaintiff filed a substituted writ, an indorsement of claim and a statement of claim on 9 October 2013.
Further directions were given on 15 November 2013. The defendant was given leave to amend its application to include an order for summary judgment.
The plaintiff was ordered to file and serve an affidavit setting out the specific facts and conduct of the defendant on which the claim is based and the injuries and financial loss which the plaintiff says he has suffered as a result and the defendant was ordered to file and serve an affidavit annexing a copy of any employment agreement and verifying the facts on which the summary judgment application is made.
The plaintiff has filed and served three affidavits dated 20 November 2013, 22 November 2013 and 18 December 2013.
The defendant filed the affidavit of Ms Sandra Katy Capece, injury services coordinator, Insurance Commission of Western Australia, sworn 6 December 2013.
The defendant concedes that the substituted writ is not defective in its form, but maintains its contention that it does not disclose in the indorsement of claim or in the statement of claim a reasonable cause of action.
Plaintiff's pleadings
The plaintiff's document headed 'Indorsement of Claim' is as follows:
The Plaintiff's claim is for the total amount of 291.750 AU dollars made of:
…
A)Damages
1.My teaching contract was for one school year in 2011. I was paid only a portion of monthly salary. My average monthly salary was 6000 AU dollars. I am claiming damages for the remaining eleven months totalling 66.000 AU dollars.
2.I purchase one used car for 2000 AU dollars. I sold it for 1000 AU dollars, my loss incurred as a consequence is 1000 AU dollars.
3.Since I was exposed to excessive stress and have been recuperating since then, I lose another school year salaries totally … 72.000 AU dollars.
4.I bought my personal effects to furnish the house I was staying in (furniture, bedding, appliances, etc (with nobody to assist me in the process – which is really regrettable) totally 500 AU dollars.
5.I contracted legal chambers in Katanning (Molinary Chambers) for legal advice and had to pay 250 AU dollars.
TOTAL AMOUNT OF CLAIM FOR DAMAGES …….. 141.750 au DOLLARS
B)General damages
1.Daily bullying, mistreatment, harassment, racial discrimination, overmonitoring, giving unreasonable deadlines, withdrawing from teaching, humiliating by parents and the principal, caused enormous stress upon me, insomnia, and general imbalance of my mental health and also damaged by professional reputation as a registered teacher in Western Australia who was already positively appraised by the Principal of Halls Head Primary school in the same system – Western Australia Education, (2009), .. total claim .. 100.000 AU dollars.
2.Claim for psychological and physical stress effects caused onto me, I ask to be compensated for totalling …. 50.000 AU dollars.
Total Claim for General Damages….. 150.000 AU dollars
Procedurally, the indorsement is superfluous as a statement of claim has been filed and served with the substituted writ, in effect indorsed on the writ: RSC O 6 r 3. No point was taken by the defendant as to form. It is appropriate that the court consider both documents.
The document headed 'Statement of Claim' is as follows:
1.The Plaintiff is teacher with Diploma of Teaching.
2.At material times the Education Department of Western Australia was responsible for hiring and paying teachers employed by the Education Department.
3.By mutual agreement in the form of fix term contract with the Education Department of Western Australia I was placed on one year fix term contract to teach at Nyabing Primary School in Nyabing Western Australia throughout 2011 school year.
4.I entered Nyabing Primary School in Nyabing and was allowed only to teach for one month.
5.I was subjected to daily bullying, harassment, ethnic discrimination, overmonitoring, placing of unreasonable deadlines, withholding crucial teaching materials, withdrawing from the classroom and teaching, subjected to daily pressures and meetings, warning of all sorts. At one stage, during the meeting with the Principal she openly admitted 'that she was not doing all that on her own but from the directives from the Education Department' – end quote, and as a consequence of all that I was CONSTRUCTIVELY DISMISSED.
6.My dismissal was unjustified for the following reasons:
7.A. Daily bullying
B. Mistreatment and disrespect myself as a teacher of good standards and reputation
C. Humiliation
D. Ethnic Discrimination
E. Overmonitoring
F. Putting unreasonable deadlines
G. Obstructing my teaching (hiding resources, daily written reminders, daily meetings, bullying by parents who were constantly asking for meetings from day one (parent bullying one of the registered problems of the school), withdrawing me numerous times from the classroom and constantly making new and new complaints.
For all the above, I am claiming, as general damages, the amount of 150.0000 AU dollars.
In addition to that I suffered damages as:
A) Loss of value from the sale of my car…. 1000 AU dollars
B) Loss of eleven months of teaching salaries… 66.000 AU dollars
C) Loss of another year of teaching because of caused stress on me... 72.000 AU dollars
D) Loss of personal effects bought to furnish my house…..500 AU dollars
E) Legal expenses to consult Legal Chambers Molinari in Katanning... 250 AU dollars
Total amount for damages… 141.750 AU dollars
MY TOTAL CLAIM FOR ALL DAMAGES IS AS FOLLOWS:
1. Damages…………………………….141.750 AU dollars
2. General damages……………………150.000 AU dollars
Total amount of Claim 291.750 AU dollars
Therefore, I seek the Court judgement for damages 141.750 AU dollars and General damages 150.000 AU dollars, and such further or other remedy as the Court may fit.
And the Plaintiff claims:
(a)Total Claim for damages 291.750 AU dollars
(b)Interest pursuant to Supreme Court Act 1935(WA) s 35, from 1st March 2010, and
(c)costs
Defendant's submissions
The defendant's position was broadly as follows.
If the plaintiff's claim is for damages for personal injury arising from his employment, the Workers' Compensation and Injury Management Act 1981 applies. The claim must fail because he has made no election pursuant to s 93L to retain the right to seek damages.
The plaintiff's allegation of constructive dismissal suggests a claim for unfair dismissal. That is a statutory claim created by the Industrial Relations Act 1979 and may only be heard by the Industrial Relations Commission.
The pleadings do not allege and the facts do not disclose any claim for breach of contract: the plaintiff brought the employment contract to an end by resigning.
The defendant submits that neither the indorsement nor the statement of claim discloses any cause of action maintainable in this court.
Plaintiff's submissions
The plaintiff argued that although he had made a claim for workers compensation, his claim for damages is not a claim for personal injury, but for constructive dismissal.
He said his position as a teacher was made untenable by the conduct of the school principal. All of his complaints, as alleged in the statement of claim, were with respect to the principal and the parents of his pupils. He said that he was unable to discharge his obligations as a teacher. Although he took no issue with the accuracy of the official records of meetings he had with the principal during the course of his employment at Nyabing, he maintained that he was bullied in every contact he had with her.
The plaintiff insisted on arguing the merits of his case by reference to his allegations of bullying and discrimination. He was informed by the court that the hearing was procedural and that the issue for determination by the court was whether the facts on which he relied disclosed a cause of action that could be maintained in this court. It was apparent that the plaintiff thought that the merits of his claim were self‑evident.
I informed the plaintiff that if his claim were not a claim in relation to personal injury suffered at work, it was either a claim for unfair dismissal in respect of which this court had no jurisdiction, or a claim for breach of contract.
Issues
The issues in this application are:
(1)Is the plaintiff's claim a claim for damages to which pt IV div 2 of the Workers' Compensation and Injury Management Act 1981 applies?
(2)Is the plaintiff's claim a claim for unfair dismissal, based on constructive dismissal, to which s 23A of the Industrial Relations Act 1979 applies?
(3)Is the plaintiff's claim a claim for damages for breach of a contract of employment?
Evidence
Order 20 r 19 of the RSC provides that the court may order any pleading or the indorsement of any writ to be struck out on the grounds that it discloses no reasonable cause of action. Rule 19(2) provides that no evidence shall be admissible on an application made on that ground.
In this case evidence is admissible with respect to the defendant's application for summary judgment. That evidence exists in the affidavit of Ms Capece and those parts of the plaintiff's affidavit of 18 December 2013 which are responsive to it.
Ordinarily, the plaintiff would not have been at liberty to bring in evidence on affidavit to support his opposition to the defendant's strike‑out application. In this case, however, the directions made by the learned principal registrar on 15 November 2013 indicate that the court was concerned to give the plaintiff every opportunity to demonstrate the facts which, though not pleaded, would, if pleaded, show a cause of action.
I have read the plaintiff's affidavits. Whilst they depose to the circumstances which give rise to his allegations set out in the statement of claim, they throw little light on the legal basis of his claim. In his affidavit of 18 December 2013 the plaintiff stated:
The employer, the Defendant, was required to enable me to work and teach and to complete one year fixed term contract. On the contrary, the employer, the Defendant, did everything possible to breach the contract and to fire me under the commonly known legal expression constructive dismissal which is the basic foundation of my claim for damages. In my view, the Defendant wrongly approached this problem and focused mostly of the entire process of my forced stress leave and the first medical certificate. I want to clarify to the Court that the first medical certificate serves as evidence of bullying and harassment and my further stay in such impossible conditions and environment would endanger my entire health – from physical to mental. That is why I had no other option but to resign and terminate my employment.
I was forced to do so and I presented my claims to the Court and gave examples to the Defendant of many instances of wrongdoings and abuses on part of my former employer.
I am not a legal expert and the definition of claim for damages was put forward as the essence of my claim and it derives from the series of abuses and mistreatments caused on to me willingly and purposely as evidenced in my submitted evidence in my first affidavit.
Again, my claim for damages could also be rephrased as claim for compensation deriving from constructive dismissal. English is my second language and I ask the Court to understand the ambiguity which may arise from the legal definitions I had made. The essence of my claim is that I was prevented to complete my contract and I gave numerous instances to prove my allegations. The Defendant did not touch upon any of them, and in my first offer to the Education Department, in 2011, I tried to reconcile and find amicable settlement, it, even after one year investigation found no ill doings and no breaches of the contract. In other words it condones illegitimate practices of its managerial staff and illegal practices which are prohibited under the existing laws and procedures governing the educational system and organisations of Western Australia.
Later in the affidavit the plaintiff states:
The Defendant did not behave in the manners as prescribed by the code of ethics, and other relevant legal documents governing employment conditions, rights and responsibilities of employees and employers. There are numerous violations of code of ethics and behaviour of the employer, who failed to provide normal and acceptable conditions for my employment.
Those breaches were illegal and have been done with ill intentions aimed at my constructive dismissal. I call upon the Court to carefully examine all my allegations and evidence and compare with the existing practices governing employment conditions and relations.
Annexed to the affidavit is the defendant's letter of offer of employment to the plaintiff dated 28 January 2011 which states:
I am pleased to offer an appointment with the Department of Education in accordance with the School Education Act 1999. The terms and conditions of your employment are those applicable to the School Education Act Employees' (Teachers and Administrators) General Agreement 2008.
The affidavit also annexes the Department of Education and Training staff conduct policy, effective 1 February 2004, which sets out, amongst other things, details of the department's operational requirements and expected conduct of staff in their day-to-day work. The manual purports to provide 'broad direction on ethical responsibilities and instruction on appropriate behaviour in specific ethical risk areas' (cl 2.1).
Clause 3.10 defines work place bullying as:
… repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work or in the course of employment, that could reasonably be regarded as undermining the individual's right to dignity and respect at work.
Appendix B sets out the steps to be taken by an employee who perceives that bullying may have occurred.
Worker's compensation question
The question of whether the plaintiff's claim should be summarily dismissed on the basis that he has no entitlement to damages for personal injury may be shortly answered.
The facts are not in issue and are deposed to in Ms Capece's affidavit.
The plaintiff put in a worker's compensation claim dated 22 February 2011 in which he reported stress, insomnia, poor concentration and exhaustion due to 'bullying and stress at work'. The defendant's insurer, RiskCover, obtained a first medical certificate from Dr Arcadie Moscaliov dated 3 March 2011 indicating incapacity for 14 days due to stress. I note the plaintiff's date of birth as stated in the certificate. He was born in 1946 and was then aged 64.
The insurer arranged for the plaintiff to be reviewed by a psychiatrist on 11 April 2011. On 1 April 2011 the plaintiff informed Ms Capece that he would not attend the appointment. On 21 December 2011 the worker's compensation claim was formally declined in accordance with s 57B of the Workers' Compensation and Injury Management Act 1981.
According to Ms Capece the plaintiff has taken no action to progress his worker's compensation claim by any further correspondence. He has taken no action to have his degree of permanent impairment determined and registered.
The plaintiff has made it clear that his claim is not for damages for injury, notwithstanding that he reported having suffered stress as a result of the circumstances leading to his resignation. On my reading of the statement of claim and the indorsement of claim what is alleged is that as a result of the conduct of the principal and the parents of the plaintiff's pupils he suffered stress and was forced thereby to resign, not that he was necessarily incapacitated or that he had suffered a compensable disability.
There is a claim for loss of one years' income as a teacher due to stress in the statement of claim and a claim pleaded for psychological and physical stress in the indorsement, but these are capable of being construed as claims for distress occasioned by breach of contract: Baltic Shipping Co v Dillon (1993) 176 CLR 344; Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 (Industrial Relations Court of Australia). (Such damages if they were recoverable would have to flow from the breach, rather than from the dismissal, actual or constructive: Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWSC 217; (2008) NSWLR 559 [64]; Rogan‑Gardiner v Woolworths Ltd [No 2] [2010] WASC 290 [125].)
The plaintiff has made it clear that he is not claiming damages for personal injury as such. His pleadings do not set up such a claim, despite the somewhat ambiguous references to stress. It is not a claim to which the Workers' Compensation and Injury Management Act 1981 applies. The defendant's application for summary judgment should be dismissed.
Unfair dismissal
Constructive dismissal is a legal concept of particular significance in industrial law. It means that a person may be able to establish an unfair dismissal if they prove that their position became so untenable that they had no choice but to terminate the employment. In such circumstances the employer may be seen to have instigated the termination: Mooney v Commissioner of Police, NSW Police Service (No 2) [2003] NSWADT 107; (2003) EOC 93-281; Alison v Bega City Council [1995] NSWIRComm 175; (1995) 63 IR 68. It amounts to dismissal because it is a termination without the employee's consent: Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia & Grivell (1999) 74 SASR 246. The notion finds expression in the Fair Work Act 2009 (Cth) s 386(1)(b) which provides that a person is dismissed if the employment is terminated on the employer's initiative, or a person resigned, but was forced to do so because of conduct engaged in by his employer.
Section 23A of the Industrial Relations Act 1979 provides:
Unfair dismissal claims, Commission's powers on
(1)The Commission may make an order under this section if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair.
(2)In determining whether the dismissal of an employee was harsh, oppressive or unfair the Commission shall have regard to whether the employee —
(a)at the time of the dismissal, was employed for a period of probation agreed between the employer and employee in writing or otherwise; and
(b)had been so employed for a period of less than 3 months.
(3)The Commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.
(4)If the Commission considers that reinstatement would be impracticable, the Commission may order the employer to re employ the employee in another position that the Commission considers —
(a)the employer has available; and
(b)is suitable.
(5)The Commission may, in addition to making an order under subsection (3) or (4), make either or both of the following orders —
(a)an order it considers necessary to maintain the continuity of the employee’s employment;
(b)an order to the employer to pay to the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal.
(6)If, and only if, the Commission considers reinstatement or re employment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.
(7)In deciding an amount of compensation for the purposes of making an order under subsection (6), the Commission is to have regard to —
(a)the efforts (if any) of the employer and employee to mitigate the loss suffered by the employee as a result of the dismissal; and
(b)any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress is also the evidence necessary to establish the claim before the Commission; and
(c)any other matter that the Commission considers relevant.
(8)The amount ordered to be paid under subsection (6) is not to exceed 6 months' remuneration of the employee.
(9)For the purposes of subsection (8) the Commission may calculate the amount on the basis of an average rate received by the employee during any relevant period of employment.
(10)For the avoidance of doubt, an order under subsection (6) may permit the employer concerned to pay the compensation required in instalments specified in the order.
(11)An order under this section may require that it be complied with within a specified time.
(12)The Commission may make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this section.
The plaintiff insists that he has suffered constructive dismissal on the basis that his continued employment became untenable due to the conduct of the defendant employer. On that basis, he would have a statutory claim for harsh, oppressive or unfair dismissal. Such a claim lies to the Industrial Relations Commission. This court has no jurisdiction to hear it.
Nothing determined in this application is intended to reflect on the merits of any claim the plaintiff may yet bring in the Industrial Relations Commission.
Claim for breach of contract?
It remains to consider whether the pleadings disclose a claim for damages for breach of contract.
As well as being used to describe a type of unfair dismissal, the expression 'constructive dismissal' may also describe circumstances where the employer is said to have breached the contract in a manner that amounts to a repudiation of it, and where the subsequent resignation of the employee is taken to be an acceptance of the repudiation, bringing the contract to an end.
Constructive dismissal was used in this context in Easling v Mahoney Insurance Brokers Pty Ltd [2001] SASC 22; (2001) 78 SASR 489, [99] (Olssen J). Easling was followed by Allsop J in Thomson v Orica AustraliaPty Ltd [2002] FCA 939; (2002) 116 IR 186. At [141] ‑ [143] his Honour held:
Constructive dismissal is an unlawful termination of the contract of employment in circumstances where the employee leaves, without an express act or enunciation of 'dismissal' by the employer. It will be taken to be a dismissal (hence the word 'constructive) if the employer has behaved towards the employee in a way that entitles the employee to treat the employment as at an end. How that behaviour of the employer is to be described is at the heart of the matter. One difficulty in a simple enunciation of the common law principle is the existence of legislation and case law on closely related topics. However, if one is to approach the matter in straightforward contractual terms there is ample authority for the implication of a term in a contract of employment that the employer will not, without reasonable cause, conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee: Burazin v Blacktown City Guardian (1996) 142 ALR 144 at 151 and the English cases there cited and Daw v Flinton Pty Ltd (1998) 85 IR 1 at 3. Breach of that implied term will entitle the employee to treat himself or herself as wrongfully dismissed. Olson J (sitting at first instance) in Blaikie v South Australian Superannuation Board (1995) 65 SASR 85 at 102 – 106 and (sitting on the Full Court, though in dissent) in Easling v Mahoney Insurance Brokers Pty Ltd [2001] SASC 22 at par 99, if I may so, expressed the principle with clarity. The principle expressed by Olsson J in Easling at par 99 was not the subject of any criticism from the majority (Doyle CJ and Bleby J). His Honour said:
'Suffice to reiterate that the notion of constructive dismissal implies the existence of conduct on the part of an employer which is plainly inimical to a continuance of a contract of employment according to its express or implied terms. The authorities establish the concept that there is implied in a contract of employment a term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. An intention to repudiate need not be proved. Rather, it is a matter of objectively looking at the employer's conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.'
The matter was approached, in part, on the basis of the existence of such an implied term.
Also, depending upon the terms, otherwise, of the contract of employment, there may be such a serious breach of contract as to amount to a repudiation of the contract or as to give rise to the right to terminate (as to the difference see the cases discussed in Byrnes v Jokona Pty Ltd [2002] FCA 41 at pars 70 to 70).
Lord Denning MR put it this way in Western Excavating Ltd v Sharp [1978] QB 761, 769:
If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all.
The existence of an implied term that an employer will not, without reasonable and proper cause, engage in conduct which is likely to destroy or seriously damage the relationship of confidence and trust between employer and employee was accepted in Delooze v Healey [2007] WASCA 157 [32]. Pullin JA held at [41]:
Whether there has been a breach of contract is measured by reference only to whether or not a contractual obligation has been broken or not. Repudiation is conduct in rejection of a party's contractual obligations. The appellant may have not intended to repudiate but actual intention to repudiate is not necessary. The issue is determined by objective consideration of the party's conduct: Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 at 658. A contract is repudiated when a party evinces an intention (by an objective assessment of his conduct) to be no longer bound by the contract or to fulfil it only in a manner substantially inconsistent with his obligations: Carr v JA Berriman Pty Ltd (1953) 89 CLR 327 at 351 – 352; Progressive Mailing House Pty Ltd v TabaliPty Ltd (1985) 157 CLR 17 at 33.
The existence of the implied term (which I will call the implied good faith term) has been recently affirmed in Keays v JP Morgan Administrative Services Australia Ltd [2012] FCAFC 100 and Commonwealth Bank of Australia v Barker [2013] FCAFC 83.
In Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney, Basten JA observed at [32] to [33]:
Although there were said to be two implied terms, it is probably sufficient to identify them as a single obligation. Thus, in Eastwood v Magnox Electric plc [2005] 1 AC 503, Lord Nicholls of Birkenhead stated at [11]:
'The trust and confidence implied term means, in short, that an employer must treat his employees fairly. In his conduct of his business, and in his treatment of his employees, an employer must act responsibly and in good faith. In principle, this obligation should apply as much when an employer exercises his right to dismiss as it does to his exercise of other powers of his which affect a subsisting employment relationship. It makes little sense, for instance, that the implied obligation to act fairly should apply when an employer is considering whether to suspend an employee but not when the employer is proposing to take the more drastic step of dismissing him.'
Recognising that an employer may act with reasonable and proper cause to pursue its own interests, whether or not they are adverse to those of an employee, and may terminate the employment at any time without cause on giving notice, casts some uncertainty on the scope and extent of the implied duties. In Australia, they have enjoyed more limited recognition than in the UK and have usually been called in aid to identify the kind of conduct of an employer sufficient to constitute' constructive dismissal', which the employee can treat as a repudiation of the contract of employment: see Easling v Mahoney Insurance Brokers [2001] SASC 22; 78 SASR 489 at [99] (Olsson J); Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) EOC 93-227; (2002) 116 IR 185 at [141] (Allsop J); Martech International Pty Ltd v Energy World Corporation Ltd [2007] FCAFC 35; (2007) 248 ALR 353 (Moore, Tamberlin and Gyles JJ); Hem v Cant [2007] FCA 81; (2007) 159 IR 113 at [20] – [23] (Finkelstein J); Delooze v Healey [2007] WASCA 157 at [32] (Wheeler JA, Steytler P agreeing).
His Honour also referred to the decision of House of Lords in Johnson v Unisys Ltd [2003] 1 AC 518 as authority for the principle that there is no right of action at common law to recover financial losses arising from the unfair manner of dismissal. This was applied in Eastwood v Magnox Electric plc [2005] 1 AC 503, Lord Nicholls of Birkenhead holding at [27]:
An employee's remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights following therefrom. By definition, in law such a cause of action exists independently of the dismissal.
It is clear then that the implied good faith term does not operate so as to give rise to a contractual claim for damages arising from the manner of termination of employment. As Hall J put it in Rogan‑Gardiner v Woolworths Ltd at [126]:
In my view, therefore, the contract in this case did contain an implied term that each of the parties, and relevantly Woolworths, would act in good faith and would not without reasonable and proper cause act in a way that was calculated to destroy or seriously damage the relationship of confidence and trust between it and the plaintiff. That term did not apply to the termination of the contract. Any such application would be fundamentally inconsistent with termination. It would also be inconsistent with other terms of the contract which provide for the rights and obligations of the parties to terminate. Whether the term applies to events preceding termination depends upon whether the impugned conduct can be viewed as being independent of termination and as establishing a cause of action prior to the termination and one that caused loss or damage that can be proved independent of that termination.
Rogan‑Gardiner v Woolworths involved a claim for damages for breach of a contract of employment. Although the plaintiff succeeded in obtaining damages assessed at four months' salary for the defendant's breach of an implied obligation to give reasonable notice of termination, she failed in proving any breach of any implied good faith term and failed also to prove a breach of any implied term that she would be entitled to redundancy benefits.
In the present case, the plaintiff speaks in his affidavit of breaches by the employer of its obligations, but he does not plead any specific terms of the employment contract, express or implied, which he would say were breached. As I understand his submissions, he bases his claim on the defendant being responsible for conduct on the part of the school principal in breach of the staff conduct policy.
The legal effect of the plaintiff's decision to resign was to bring the employment contract to an end. On the authorities to which I have referred, no claim for damages, as opposed to a claim for statutory relief pursuant to s 23A of the Industrial Relations Act 1979, arises from the termination of his employment. The question is whether the facts capable of being pleaded disclose any breach of contract by the defendant which could reasonably be viewed as repudiatory.
The plaintiff, as I have noted, is entitled to reasonable assistance by the court. The plaintiff was directed to depose to the 'specific facts and conduct' on which his claim was based. The direction was necessary because the allegations in the pleadings of daily bullying, ethnic discrimination, over‑monitoring, placing of unreasonable deadlines, withholding teaching materials, withdrawing him from class etc, were not particularised and were not made with reference to any express or implied term of the employment contract, or any norm of professional conduct, so as to make them material. In his submissions the plaintiff says the conduct he alleges was in breach of the staff conduct policy.
The affidavit of the plaintiff sworn 22 November 2013 sets out the factual basis of the claim. I will touch upon the significant aspects.
He identifies, firstly, two emails from the principal on 4 February 2011 (attachment 1.1), three days prior to commencement of term, characterising them as intimidating. Objectively, these emails said no more than that if the plaintiff, who had indicated that day that he would not be arriving in Australia until 7 February, the first day of school, were not ready to start on that day his contract would be rescinded. They do not bear the meaning for which the plaintiff contends.
The plaintiff next refers to letters from the principal to him dated 9, 10, 12 and15 February (attachment 1.2). These are letters which purport to confirm the substance of discussions about the plaintiff's performance. They deal with performance issues in response to complaints by parents. In the letter of 12 February the principal says that it was not intended to be intimidatory, but to be a basis for further discussion about performance. In it she says that she has arranged for an education assistant to be provided to help the plaintiff. The last letter sets out a plan for performance management. Viewed objectively, none is intimidating or obstructive in its terms, tone or context.
Attachment 1.3 consists of two notes of meetings between the principal and the plaintiff recorded by the school registrar. The plaintiff told me these were accurate. The meetings were on Monday, 14 February, and Tuesday, 15 February. The second was attended by an education assistant as an observer at the plaintiff's request.
The meetings related to parent complaints. The principal is recorded as having said that the code of ethics applied to the process to ensure fairness. The notes record that the plaintiff's agreement was obtained with respect to some matters discussed at the meeting, including his agreement to teach values in the religious education programme (which he otherwise refused to teach), to tell parents that his New Zealand early childhood education qualifications were not recognised in Western Australia (as a matter of integrity), and to deal with the problem of his accent by speaking slowly to pupils and their parents.
It is clear from the notes, however, that the plaintiff did not accept criticism of his dealings with parents with respect to their concerns. He did not accept their complaints that he raised his voice at them, and belittled them, but said that he would apologise to them if it would help.
The principal expressed concern about his qualifications and suggested a programme of professional development and mentoring to which he agreed. There were discussions about his approach to behaviour management and handwriting. He was minded to consult the union and the standards and integrity section about issues with the parents.
The notes of the second meeting indicate that the plaintiff did not want to have any meetings with parents. The principal said that he had to attend a face to face parent meeting if required. The plaintiff accused the principal of being a bully and quarrelling with him every day. She denied that she was or did, and told him that she was doing her job as the parents were complaining. He said there was too much pressure on him. He accused her of wanting to sack him from day one. She denied this.
The notes record that she said that all directives came from the department and that 'it was not personal'. It is clear to me from the context of the meeting that by 'directives' the principal meant the standards of performance that the plaintiff should meet. According to the notes, he was not allowed to teach until he could deal with parental complaints. There was discussion about performance management. The plaintiff agreed to work through phase 1 and phase 2 competency frameworks.
Attachment 1.4 is the plaintiff's complaint of workplace bullying to the Western Australian Teachers Union immediately following the meetings on 14 and 15 February.
Attachment 1.8 includes copies of complaint action plan 1 with respect to the religious education programme, complaint management action plan 3 with respect to verbal communication, and complaint management action plan 7 with respect to behaviour management policy, each signed by the principal and the plaintiff, and a discipline management plan prepared by the plaintiff.
The plaintiff wrote a letter of complaint to the Minister for Education on 8 March 2011. The letter was answered by the director-general of the department, Ms Sharyn O'Neill, on 4 April 2011. Ms O'Neill stated that the department did not condone bullying and provided all employees with a working environment that was safe, equitable, and free of discrimination and harassment through its workplace bullying policy. Employees were under an ethical and legal obligation to behave in accordance with the Western Australian Public Sector Code of Ethics and departmental policies, including the employee performance policy and the staff conduct policy. The letter noted the plaintiff's resignation from 1 March 2011.
The plaintiff sent a further letter to the minister on 14 April 2011 setting out a formal complaint of bullying by parents and the principal. In it he said that this was a case of 'premeditated and well prepared acts and actions, firstly, not to resume my job, and secondly, to evict me from the job at any price because of my ethnical, national, religious and language background' [sic]. The letter went on to claim damages of $291,750 on a similar basis to that set out in the statement of claim.
After further correspondence Ms O'Neill responded on 6 March 2012 iterating an earlier email in May 2011 in which she said that after thorough consideration of his claims she was unable to sustain any of his assertions of ill‑treatment.
Do the facts disclose repudiation by the defendant?
Needless to say, the statement of claim pleads neither the existence of the implied good faith term, nor a breach of it by the defendant. It does not plead repudiation or acceptance. There is no question then that the statement of claim and the indorsement should be struck out. The issue is whether the pleadings are capable of remedial amendment. If they are not, the action should be dismissed.
On the basis that the contract of employment contained an implied term that the defendant would not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or damage the relationship of confidence and trust between employer and employee, the question is whether the facts relied on by the plaintiff disclose a breach of that obligation such as would amount to a repudiation of the contract which, by his resignation, he accepted.
Repudiation of a contract is a serious matter and not lightly to be found: Shevill v Builders' Licensing Board (1982) 149 CLR 620, 633 ‑ 4. In Easling v Mahoney Insurance Brokers Pty Ltd the implied good faith term was breached by the employer's decision to significantly change the employee's working conditions, yet, as Olssen J observed at [99], 'it is a matter of objectively looking at the employer's conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it'. It is a matter of fact.
That the facts pleaded and deposed to by the plaintiff, subjectively viewed, have given him cause for grievance does not satisfy the test of repudiatory breach. The alleged conduct of the defendant, taken as a whole and considered objectively, must evince an intention to be no longer bound by the contract or to fulfil it only in a manner substantially inconsistent with its obligations.
The material facts are to be distinguished from the plaintiff's characterisation of them. In examining the facts deposed to by the plaintiff (and evidenced by the documentation to which I have referred) for the purpose of discerning whether they disclose any cause of action, I am only concerned to determine what their legal effect would be if proved. My determination of this application does not involve any fact‑finding as such.
The alleged conduct of the principal relates to her attempts to manage the problems occasioned by parental complaints about the plaintiff's performance. There is really no dispute, given the plaintiff's concession that the official notes of his meetings with the principal on 14 and 15 February were accurate, as to what was planned to be done to deal with those problems. Of course, the defendant is not responsible for the manner in which parents expressed their concerns.
In my view, the actual conduct complained of, taken at its highest, is not capable, as a matter of law, of constituting a breach of the defendant's implied good faith obligation.
The cases in which breach of the implied term has been found to amount to a repudiation of the employment contract are cases in which an employee has been demoted or required to perform duties substantially different from those which he or she was employed to perform, so as to cause a significant diminution of status and responsibility. I have not found any case where an allegation of bullying and discrimination by one employee towards another in breach of the employer's policy has been found to amount to a breach of the good faith term capable of constituting a repudiation of the contract.
The alleged conduct, as described by the plaintiff in his affidavit evidence and as pleaded, does not objectively evince an intention on the part of the defendant not to be bound by the contract or to fulfil it only in a manner substantially inconsistent with its obligations.
Conclusion
In summary my conclusions are as follows:
1.The claim is not a claim for damages for personal injury to which the Workers' Compensation and Injury Management Act 1981 applies.
2.The facts pleaded and deposed to by the plaintiff disclose a potential claim of unfair dismissal pursuant to s 23A of the Industrial Relations Act 1979 which this court has no jurisdiction to decide.
3.The statement of claim and the indorsement of claim are struck out on the basis that they do not disclose a reasonable cause of action.
4.On the facts relied upon by the plaintiff no action for damages for breach of contract based on constructive dismissal is available.
It follows that the defendant's application for summary judgment must be dismissed. The application to strike out the statement of claim and indorsement of claim should be allowed and the plaintiff's action dismissed.
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