State of South Australia v McDonald

[2009] SASC 219

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

STATE OF SOUTH AUSTRALIA v MCDONALD

[2009] SASC 219

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Kelly)

30 July 2009

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - IN GENERAL

EMPLOYMENT LAW - OTHER RIGHTS AND DUTIES OF PARTIES - DUTY OF MUTUAL TRUST AND CONFIDENCE

EMPLOYMENT LAW - TERMINATION AND BREACH OF CONTRACT - TERMINATION OR BREACH - WHAT CONSTITUTES

DAMAGES - GENERAL PRINCIPLES - OTHER MATTERS

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT - PARTY'S FAILURE TO GIVE OR CALL EVIDENCE

Appeal against the award of damages for breach of the respondent’s employment contract –respondent was a teacher appointed to the teaching service by the Minister for Education (“the Minister”) under the Education Act 1972 (SA) – Judge found both the existence and repudiatory breach of an implied term of mutual trust and confidence in the respondent’s employment contract – Judge also found that the implied contractual duty of care had been breached - Judge found the respondent was entitled to terminate the contract due to the Minister’s repudiatory conduct – Judge awarded damages for loss of earnings.

Whether s 54 of the Workers Rehabilitation and Compensation Act 1986 (SA) precluded the respondent’s claim for damages - whether Judge erred in determining that there was an implied term of mutual trust and confidence in the respondent’s employment contract – whether the Minister breached the implied contractual duty of care – whether the cumulative effect of the circumstances raised by the respondent amounted to a repudiatory breach of his employment contract.

Whether Judge erred in findings of fact - whether Judge erred in not applying the rule in Jones v Dunkel (1959) 101 CLR 298 with respect to the State’s failure to adduce certain evidence.

Cross-appeal against the quantum of damages awarded to the respondent – whether Judge erred in not allowing the cross-appellant to amend statement of claim to include additional causes of action – whether Judge erred in failing to award damages for non-economic loss – whether such claims barred by s 54 of the Workers Rehabilitation and Compensation Act 1986 (SA).

Held:  the respondent’s contract of employment did not contain an implied term of mutual trust and confidence – Minister’s conduct did not constitute a repudiatory breach of the contractual obligation to take reasonable care to protect the respondent from foreseeable injury arising from his employment contract.

Appeal allowed – cross-appeal dismissed.

Workers Rehabilitation and Compensation Act 1986 (SA) s 3, s 30, s 30A, s 53, s 54, s 64; Education Act 1972 (SA) s 6, s 15, s 15A, s 15B, s 16, s 17, s 26, s 30, s 50, s 54; Workplace Relations Act 1996 (Cth); Industrial Relations Act 1972 (SA) s 6; Equal Opportunity Act 1984 (SA); Education Regulations 1976 (SA); Education Regulations 1997 (SA) regs 31, 35, 37, 48, referred to.
Hawkins v Clayton (1988) 164 CLR 539; Byrne v Australian National Airlines Limited (1995) 185 CLR 410; Director-General of Education v Suttling (1987) 162 CLR 427; Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44; R v Portus; Ex Parte Australian and New Zealand Banking Group Ltd (1972) 127 CLR 353; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; Koehler v Cerebros (Australia) Limited (2005) 222 CLR 44; Devries v Australian National Railway Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118; BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Cava v Marshall (2003) 230 LSJS 347; Koh v State of South Australia (1989) 154 LSJS 38, applied.
Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84; Western Excavating (E.C.C.) Ltd v Sharp [1978] QB 761; Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; Burazin Blacktown City Guardian Pty Ltd (1996) 142 ALR 144; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 176 IR 82; Johnson v Unisys Ltd [2003] 1 AC 518; Reference:  Re Public Service Employee Relations Act [1987] 1 SCR 313; Brodie v Singleton Shire Council (2001) 206 CLR 512, discussed.
Easling v Mahoney Insurance Brokers (2001) 78 SASR 489; Workers Rehabilitation and Compensation Corporation v J R Engineering Services Pty Ltd & Ors (1995) 180 LSJS 276; Workers Rehabilitation and Compensation Corporation v Hillier & van Wyk (1997) 193 LSJS 57; Jennings Constructions v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 465; Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1989) 167 CLR 45; Lucy v The Commonwealth (1923) 33 CLR 229; Gregory v Philip Morris Ltd (1988) 80 ALR 455; Wheeler v Philip Morris Ltd (1989) 32 IR 323; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; Malik v Bank of Credit and Commercial International S.A. (in liq) [1998] AC 20; Eastwood v Magnox Electric plc [2005] 1 AC 503; Woods v WM Car Services (Peterborough) Ltd [1982] ICR 693; Lewis v Motorworld Garages Ltd [1986] ICR 157; Bliss v South East Thames Regional Health Authority [1987] ICR 700; Gogay v Hertfordshire County Council [2000] All ER (D) 1057; Carrigan v Darwin City Council [1997] IRCA 88; Daw v Flinton Pty Ltd (1998) 85 IR 1; Thomson v Orica Australia Pty Ltd (2002) 116 IR 186; Morris v Hanley (2003) 173 FLR 83; Hem, Re Coulco Trading Pty Ltd v Cant (2007) 159 IR 113; Taske v Occupational and Medical Innovations Ltd (2007) 167 IR 298; Morton v Transport Appeal Board (No 1) (2007) 168 IR 403; Delooze v Healey [2007] WASCA 157; Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633; Quinn v Gray [2009] VSC 136; Heptonstall v Gaskin (No 2) (2004) 138 IR 103; McDonald v Parnell Laboratories (Aust) Pty Limited (2007) 168 IR 375; Van Efferen v CMA Corporation Limited [2009] FCA 597; Turner v Australasian Coal and Shale Employees' Federation (1984) 55 ALR 635; Woods v W.M. Car Services (Peterborough) Ltd [1981] ICR 666; Wallace v United Grain Growers Ltd (1997) 152 DLR (4th) 1; Clark v Nomura Ltd [2000] IRLR 766; State of New South Wales v Paige (2002) 60 NSWLR 371; R v Kelly: Ex Parte Victoria (1950) 81 CLR 64; R v Commonwealth Industrial Court Judges: Ex Parte Cocks (1968) 121 CLR 313; Australian Education Union v State of South Australia [2000] AIRC 404; Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; Poniatowska v Hickinbotham [2009] FCA 680; Jones v Dunkel (1959) 101 CLR 298, considered.

STATE OF SOUTH AUSTRALIA v MCDONALD
[2009] SASC 219

Full Court:  Doyle CJ, White and Kelly JJ

THE COURT:  

Table of Contents

Introduction

Background
The Judge’s Reasons
Mr McDonald’s Submissions on the Appeal

Failure of the Judge to Apply the Rule in Jones v Dunkel

Challenges to Factual Findings

The Selection in June 2002 of a New Coordinator
The Thornton Intimation
The Conduct of Mr Goode
Invasion of Work Space
Other Challenges

Section 54 of the Workers Rehabilitation and Compensation Act 1986
The Implied Term of Mutual Trust and Confidence

The Origins of the Term
Australian Decisions
The Bases for the Implication
The Implied Term and Statutory Regulation of the Contract of Employment
Relevant Terms and Conditions of Mr McDonald’s Employment
The Education Act 1972
The Education Regulations 1997
Industrial Awards and Agreements
DECS Policies
The Effect of the Statutory and Industrial Award Regulation
Alternative:  Was there a Breach?
New Point on Appeal
Conclusion Concerning the Implied Term of Mutual Trust and Confidence

Was There a Repudiatory Breach of the Minister’s ImpliedContractual Obligation to Take Reasonable Care?

Work Definition
Workload Issues
10 Year Placement
The Selection of a New Coordinator in June 2002
Completion of the Placement Document
Conduct of the School Support Officers
Bullying/Harassment/Victimisation
Performance Management
Committee Participation
Ms Hyde:  Failure to Address Grievance

General

Mr McDonald’s Cross-Appeal

Ground One
Ground 1.1
Ground 1.2
Ground 1.3
Grounds 1.4 and 1.5
Ground 1.6
Ground 1.7
Grounds 1.8 and 1.9
Ground 1.10
Ground 1.11
Ground 1.12
Ground 1.13
Ground 1.14
Ground 1.15
Ground 1.16

Conclusion

Introduction

1. This is an appeal against an award of damages to a former teacher for breach of his employment contract.

2. From 1990 until April 2003 the respondent (Mr McDonald) held an appointment as an officer in the teaching service under the Education Act 1972 (SA) (“the Act”). He was appointed to that position by the Minister of Education (“the Minister”) (who at certain times has also been designated as Minister for Education and Children’s Services and as the Minister for Education, Training and Employment). Hereafter we will refer to the Minister as Mr McDonald’s employer. It is not necessary to decide whether his employment contract was with the Minister or with the Crown. We will refer to the department administering the Act under the Minister’s direction as “DECS”.

3. On 11 April 2003 Mr McDonald wrote to the Premier, and sent a copy of the letter to the Director-General of Education.  In the letter he sets out complaints about his treatment as a teacher, and states “… Therefore I dismiss myself from my employment ...”.

4. In April 2004 Mr McDonald brought proceedings in the Supreme Court naming DECS as defendant.  In August 2004 the State was substituted as defendant.

5. Mr McDonald alleged that the Minister, over a period of years, had acted in such a manner as to evince an intention not to be bound by or to observe the contract of employment.  In response to that, Mr McDonald had resigned, treating himself as dismissed.  He alleged that the Minister had subjected Mr McDonald to an unsafe system of work, by giving him duties for which he was not trained, and by requiring him to cope with an excessive workload; by exposing Mr McDonald to bullying and harassment in the workplace; by a prolonged failure to deal with grievances expressed by Mr McDonald to officers of DECS relating to his work and workload, and by failing to provide proper management and supervision.  Mr McDonald alleged that this caused him to suffer from stress and to develop an anxiety state.  Mr McDonald claimed damages for wrongful dismissal, the main component of which was earnings lost to the date of trial and earnings that he would lose in the future.

6. Mr McDonald’s claim rested mainly on an assertion that the Minister had persistently refused to comply with three provisions of the contract of employment, thereby entitling Mr McDonald to treat the contract as at an end.  The provisions are an implied term requiring the Minister to take reasonable care for Mr McDonald’s health and safety, and in particular to take reasonable care to provide a safe place and system of work; an implied term that the Minister would not act “… in a manner likely to damage or destroy the relationship of mutual trust and confidence between the parties as employer and employee”, and a further implied term that the Minister would exercise his powers in relation to Mr McDonald fairly and reasonably:  Further Amended Statement of Claim (21 June 2007) para 87.

7. This is a brief summary of a lengthy Statement of Claim.

   Background

8. The background to his claim and to the litigation is the rapid expansion of computer networks, the rapid growth in the number of computers, and growth in the use of information technology in schools conducted by DECS during the mid 1990s.  A number of the witnesses who gave evidence said that schools lacked trained personnel needed to repair and to maintain the computers with which the schools were being provided, and lacked persons qualified to establish information technology systems within schools.  Mr McDonald’s case focussed on the impact of this on him when he worked at Mt Barker High School (“Mt Barker”) in 1996 and then at Brighton Secondary School (“Brighton”) between 1997 and 2003.  The Judge summarised the case as follows:  McDonald v State of South Australia [2008] SASC 134 at [4]-[6]:

   [4]Mr McDonald was asked to carry out the work of a network manager at Mt Barker. This was his first employment in South Australia after returning from Scotland. He claims that his health suffered as a result of being asked to do this work at Mt Barker and that it then became worse when he was again asked to do similar work at Brighton. He says he was not qualified to do the work that he performed in repairing and maintaining computers and other equipment. He says his employer either knew or should have known that he was unqualified in this area of work. He claims that his employer should also have observed that it was affecting his health because he was being placed under stress. He claims that he was not supported by his employer and was in fact harassed and bullied. He claims that there was a breach of a fundamental term in the contract to provide a safe system of work and also that there was a breach of an implied term in his contract of employment, namely, conduct by his employer which destroyed or damaged the relationship of mutual trust and confidence.

   [5]It is Mr McDonald’s claim that in the circumstances in which he found himself in early 2003 he eventually had no option but to terminate his employment. He alleges that he had no choice other than to terminate his employment because of the conduct of the servants or agents of his employer which he claims amounted to a repudiation of the contract of employment. Mr McDonald therefore maintains that the termination of his employment was in circumstances where he was constructively dismissed, that is, his termination was brought about because of the breaches of contract by his employer.

   [6]Although Mr McDonald alleges ongoing victimisation from an early stage of his employment with DECS, as will be seen later in these reasons, the more important events which occupied a large part of the evidence relate to Mr McDonald’s employment at Brighton between 1997 and 2003, and more specifically between 2001 and 2003.

9. After a trial lasting about six weeks the Judge found in favour of Mr McDonald.

10. The Judge found that it was an implied term of the contract of employment that the Minister provide a safe system of work: at [357]. He also found that it was an implied term of the contract of employment that the Minister would not damage or destroy the relationship of trust and confidence between the Minister and Mr McDonald, without reasonable cause: at [388]. The Judge found that the Minister breached each of these terms over a period of time.

11. The Judge said at [431]-[432]:

    [431]In my view it was a series of cumulative events which eventually led Mr McDonald to give his notice of constructive dismissal. The series of cumulative events were imposed on Mr McDonald, who was suffering from stress and anxiety, and finally led him to the belief that he had no other option but to terminate his employment. Mr McDonald believed that the conduct of DECS was having a negative or detrimental effect on him. Dr Kalnins’ report supports this.

    [432]Mr McDonald’s grievance commenced in late 2000 and early 2001. It commenced with him expressing dissatisfaction at not having his work role clearly defined in terms of what he was required and not required to do. This took place in a situation where he was clearly overworked and performing work that was not appropriate to his job description. At the same time he was also seeking clarification of his future tenure at Brighton. …

12. The Judge referred to a number of particular matters, and then said at [438]-[439]:

    [438]Mr McDonald was continually frustrated by the lack of any progress in the grievance procedure. Mr McDonald was never given a proper hearing. The information provided to Ms Hyde was all one-sided and provided by those who were his antagonists at Brighton. This was recognised as such when a department other than DECS finally got to hear of the matter through Mr McDonald’s persistence. His grievance remains unresolved.

    [439]The cumulative effect of all of these matters caused Mr McDonald to give notice after he believed that the relationship between him and his employer had irretrievably broken down. He claims constructive dismissal for this series of events. In the end result I agree with him because, viewed objectively, the conduct as a whole was such that it was not reasonable to expect Mr McDonald to put up with it.

    The reference to the “grievance procedure” is a reference to complaints by Mr McDonald to senior officers in the Department relating to his situation.

13. The Judge awarded damages for breach of each term.  The Judge said:

    [507]The claim is for damages for loss of earning capacity up until the present time, and for loss of future earning capacity between the present time and 2013. I should say at this point that the calculation of Mr McDonald’s loss has been hampered by a lack of precise information. An assessment has therefore been made using the limited material provided to me. Of necessity the assessment will be a broad brush approach and I will use rounded off figures in most cases.

    The Judge apparently then awarded damages on that basis. In the end he awarded an amount assessed at $392,850, of which about half represented loss of earnings or loss of earning capacity to the date of trial, the other half representing future loss of earnings or loss of earning capacity: at [549].

14. The State has appealed against this decision.  It does not deny that there was a contract of employment with Mr McDonald.  The State challenges numerous findings of fact made by the Judge.  It denies the existence of the duty to maintain a relationship of trust and confidence.  It does not deny that the Minister was subject to a contractual obligation to take reasonable care to provide a safe system of work and a safe workplace.  The State denies that the Minister was in breach of any of the provisions of the contract of employment.  The State does not challenge the assessment of damages, should it be liable to Mr McDonald for damages.  It follows that there is no need to deal with the Judge’s assessment of damages.

15. Mr McDonald was not legally represented during the trial or on appeal.  He has done his best in what is a difficult case, presenting a multitude of factual issues and some difficult issues of law.  He has mastered the facts of the case.  However, the end result is that neither the Judge nor this Court on appeal had the benefit of submissions on Mr McDonald’s behalf that grappled adequately with the issues of law that arise.

16. On appeal, the main issues are as follows.

17. First, a challenge to numerous factual findings made by the Judge. 

18. The second main issue is a challenge to the finding that there was an implied term requiring the Minister not to damage the relationship of mutual trust and confidence between the parties.

19. The third main issue arises from the denial by the State that the Minister breached any provisions of the contract of employment.

20. The fourth main issue is a challenge to the Judge’s finding that the contract of employment (the existence of such a contract is not disputed) was able to be terminated by Mr McDonald by accepting what the Judge identified as repudiatory conduct on the part of the Minister. The State argues that the provisions of the Act and of the Education Regulations 1976 (SA) (“the 1976 Regulations”) and the Education Regulations 1997 (SA) (“the 1997 Regulations”) coupled with provisions of the Teachers (DECS) Award and the South Australian Education Staff (Government) Pre-Schools, Schools and TAFE Certified Agreement 2002 establish a detailed scheme for the regulation of the relationship between the Minister and teachers. The State argues that this scheme is inconsistent with the survival of a contractual right on the part of a teacher to treat breaches of the contract by the Minister, or at least breaches of the kind found by the Judge, as repudiatory conduct on the part of the Minister, conferring on the teacher a contractual right to treat the contract as terminated by the Minister. In brief, the State’s argument is that the Act, the 1976 Regulations, the 1997 Regulations, the award and the certified agreement provided adequate remedies for all of the things about which Mr McDonald claimed, and that the existence of these remedies is inconsistent with a contractual right to terminate the contract in the present case.

1. It will be necessary in due course to refer to s 54 of the Workers Rehabilitation and Compensation Act 1986 (SA), (“the WRC Act”) as the State submitted that it constituted a complete bar to Mr McDonald’s claim.

2. Mr McDonald has cross-appealed, claiming that the award of damages is inadequate.  During the trial the Judge refused an application by Mr McDonald for permission to amend his Statement of Claim to include further causes of action.  Mr McDonald claims that the Judge erred in this respect, and that he is entitled to damages for physical and mental injury arising from his employment, relying on these causes of action.  The Judge refused to award aggravated or exemplary damages, and rejected a claim for damages for deceit.  Mr McDonald again argues that the Judge erred.

3. Before grappling with the issues that arise on the appeal, it is necessary to summarise the Judge’s reasons.

   The Judge’s Reasons

4. We begin by setting out some preliminary remarks by the Judge, which provide a useful background to his findings.  The Judge said:

   [11]Mr McDonald represented himself in the long hearing which took place before me. Likewise he represented himself during the long interlocutory processes leading up to trial. He had a keen appreciation of the issues involved and a good understanding of the legal principles. On earlier occasions in the history of this matter he had been represented by lawyers. However, he lost faith in lawyers when his difficulties arose at Brighton. He was seeking advice as to his rights and was effectively told by three different lawyers that he should make a claim for workers compensation. He did not appreciate until after he made such a claim that this might preclude him from any action for common law damages that he wished to take. He then withdrew his claim. He said he always wanted to claim damages because of the way he had been dealt with.

   [12]During the trial Mr McDonald came across as a very earnest and diligent individual whom I found to be somewhat obsessive in his reaction to anything that occurred in the course of his employment. He seemed to believe that everything was part of a grand plan or conspiracy to cause him embarrassment and distress. As I will later indicate, I think he was justified in some of his conclusions but overall I must say that I think some of Mr McDonald’s reactions to events that occurred were exaggerated. Mr McDonald has a fiery disposition.

   [13]At various times during the trial it was apparent that Mr McDonald was losing patience and had no faith in the legal system.  He often indicated to me, when I either attempted to assist him or made rulings which affected the running of the trial, that he was heading for the High Court in any event, whatever happened in this matter.  He said he knew from the moment he started his legal proceeding, and having regard to what he terms the various barriers put in his way by his employer, that he could not get justice until he went to the High Court.

   [14]Mr Mills criticised Mr McDonald for his lack of reliability as an historian. It is true that some of the dates deposed to by Mr McDonald have been proved inaccurate by other evidence. However, in general terms I am not prepared to find Mr McDonald unreliable in his recounting of the details of events, even though some of the timing of the events is inaccurate. He has clearly attempted to fix dates by reconstruction and has been in error on some occasions. I find him to be a good historian in relation to the major events described by him during his evidence.

   [15]It was an unsatisfactory atmosphere in which to conduct the litigation because it was difficult to get agreement on anything, and whenever agreement was being suggested by Mr McDonald’s opposition he immediately interpreted that as an attempt by his opposition to gain some unfair advantage over him.  There were very few matters of common ground, although there are some important admitted facts, which I will deal with during the course of these reasons.

   [16]Both sides called a large number of witnesses. Mr McDonald called employees and former employees of DECS to help prove his case. I will deal with the most important witnesses later in these reasons. As will become apparent, I thought there were some witnesses who took a stand against Mr McDonald and therefore gave their evidence in an unobjective and unhelpful way. Some of these witnesses I am not prepared to accept on crucial matters where I prefer the evidence of Mr McDonald. While some of the witnesses called by Mr McDonald gave evidence adverse to his case, I do not regard them as his witnesses in the normal scheme of things. He was attempting to prove his case by the only means available to him and by calling these witnesses he was able to add substantially to his cause, although as I have said, some of the witnesses clearly had interests adverse to those of Mr McDonald. Witnesses in this category, but called by Mr McDonald, include Mr Boaden, Ms Cochram and Ms Hyde.

5. Mr McDonald is an experienced teacher.  Referring to Mr McDonald’s return to South Australia after a period of leave, the Judge said:

   [29]When he returned to South Australia, most of Mr McDonald’s teaching was within the areas of business studies and specific subjects essentially related to keyboard skills including typing, word processing and computing studies generally.

   But, as the Judge added:

   [31]When Mr McDonald entered on his ED112 Teacher Placement form for DECS in 1995 that he was a business studies teacher with some computing experience, his knowledge of computers extended to the use of word processing, database and spreadsheet programs.  He did not know anything about the inside workings or technical aspects of computers or managing networks.  He had no qualifications or training in the repair and maintenance of computers, printers and associated hardware.

6. As we have already mentioned, the background to this case is the increasing use of computers in schools during the 1990s and the increasing use of and reliance on information technology.  It appears that although schools were being provided with computers in increasing numbers, there was a lack of staff with the skills required to repair and to maintain computers, and to manage the information technology networks that were being established.  Mr McDonald had no training in this area.  The Judge summarised the position as follows at [181]:

   From the evidence and from my observations of the witnesses relevant to this period of time, I make the following findings:

   1.There was no overall management plan by DECS in relation to its rapid expansion of computers, either generally or specifically in relation to Brighton.

   2.There was no risk management strategy attached to the roll-out plan. No consideration was given to the effect on staff of taking on added responsibilities on top of their existing workloads.

   3.The schools were left to their own devices to manage the influx of computers in whatever way they could with their existing staff.

   4.Brighton was a very large school and one of five singled out for the roll-out of information technology in schools.

   5.No-one at DECS gave proper consideration as to how new networks would be set up and managed, and there was no appropriately qualified employee at Brighton to do such work. The roll-out required planning and the selection of key qualified personnel. No training was provided.

   …

7. While on leave in Scotland in 1995, Mr McDonald applied to DECS for appointment to a position. He had been appointed on a permanent basis to the teaching service in January 1990: see s 15 of the Act and Exhibit P34. That meant that he had tenure under the Act. We will return later to this issue. The scheme of the Act and regulations involves the appointment of “officers” to positions in particular schools, usually for a specified term. Appointment to the teaching service does not, of itself, involve appointment to a position in a school.

8. Mr McDonald was appointed to Mt Barker: [Exhib P6]. The practice was to give a teacher and the principal of the school a letter of appointment specifying the teaching duties and term of the appointment made by the letter. Mr McDonald was not given a letter. The letter was produced by way of discovery, and was tendered at trial: [Exhib P6]. It was an appointment for one year. Mr McDonald was appointed to teach computing and business maths to Year 12 level: [35]. Mr McDonald began at Mt Barker in January 1996.

9. Mr Parsons, the principal at Mt Barker, asked Mr McDonald to manage the computing network.  This sowed the seeds for what has led to this litigation.  The Judge made the following findings in relation to this at [36]-[38]: 

   [36]Mr McDonald agreed to do this, although he had not previously been involved in managing networks. He had no-one to manage or supervise him in that work. In addition he was not provided with any training. His computer experience was at the keyboard level and not related to the technical aspect of computers or their hardware. The job of network manager would not normally involve any hands-on maintenance or repair work.

   [37]This was at a time when DECS’ information technology program was being rolled out. This was a program to dramatically increase the number of computers in schools controlled by DECS. At Mt Barker Mr McDonald experienced many difficulties because there were three different generations of computers that were all in a poor state of repair. Mr McDonald did the work managing the network willingly and also involved himself in out-of-hours work by taking any malfunctioning computers for repair to the city, where he was living. He took them on his way home and then picked them up and took them back to the school the following morning. The head master, not surprisingly, was very pleased with the work that Mr McDonald was doing and spoke highly of Mr McDonald’s work in a form that he provided to DECS at the end of the year.

   [38]Mr McDonald performed in a hybrid role because of the absence of two teachers from the previous year. Mr Parsons stated in a document entitled “1997 Teacher Placement” that Mr McDonald replaced both a Technology Coordinator and a Network Manager. He said this was a demanding and complex task. Mr Parsons, not knowing of Mr McDonald’s lack of experience, praised his experience and knowledge. Apart from Mr McDonald’s success in managing the network, Mr Parsons also praised his teaching expertise and his understanding of students. Mt Barker had been given a new network and Mr McDonald got it up and running when those teachers who were to be involved did not return to the school in 1996.

10. But the demands of the work took a toll on Mr McDonald’s health.  The Judge summarised evidence from Mr McDonald on this, and it is clear that he accepted this evidence.  The Judge said:

    [40]Mr McDonald told me that in August 1996 during his year at Mt Barker he went to a doctor. He said that he was then suffering from stomach cramps, pains in his shoulders and was vomiting. He said that he was prescribed medication by way of anti-depressants and also given something for his stomach. Apparently he had also experienced the same problems in Scotland before returning to Australia and had sought and obtained medical treatment. The problems were related to stress and anxiety at work.

11. There is no challenge to these findings.  Mr McDonald was given demanding work for which he was not trained, and it seems as well that he was expected to do more work than was reasonable.  He had a full time teaching load as well as managing the computing network.  There is no doubt that the workload began to affect Mr McDonald’s health adversely.

12. Although Mr McDonald agreed with Mr Parsons that he would remain at Mt Barker in 1997, he did so to keep Mr Parsons happy.  In fact, he did not want to stay there, because of the excessive demands being made of him.

13. The Judge found that in December 1996 Mr McDonald told Mr Boaden about the difficulties he had experienced at Mt Barker.  Mr Boaden’s position was Assistant Director of Personnel.  The Judge made the following finding, relating to conversations between Mr McDonald and Mr Boaden in December 1996:

    [59]The times and dates mentioned by Mr McDonald in his evidence are probably not strictly accurate but I find that the conversations between Mr McDonald and Mr Boaden did take place and covered the areas deposed to by Mr McDonald. In particular I find that Mr Boaden was told by Mr McDonald that he had encountered health problems at Mt Barker because of work related stress and anxiety.

    The Judge rejected evidence by Mr Boaden that he was not informed about Mr McDonald’s problems.  There is no basis for disturbing that finding.

14. It follows that Mr McDonald drew to the attention of a senior officer in DECS that he had been given work for which he was not trained, that undue demands had been made of him, and that his health had suffered.

15. It is relevant to record that the problem identified by Mr McDonald might well arise in another school, because of difficulties that were being experienced in schools in managing the growth of information technology.  But on the Judge’s findings, Mr Boaden did nothing about this.

16. The next significant step was the decision by Mr Boaden to appoint Mr McDonald to a position at Brighton.   Ms Schupelius was the principal at Brighton.  The Judge made the following findings:

    [58]Ms Schupelius advised DECS on 30 December 1996 that she had not filled the Coordinator IT position. She wanted to do it from within the school, if DECS agreed. She stated that she needed to have a computing teacher to Year 12 instead. Mr Boaden thought that Mr McDonald fitted the bill and hence advised Mr McDonald in January about Brighton.

    …

    [61]It was, in my view, convenient for both Ms Schupelius and Mr Boaden that Mr McDonald became available to teach at Brighton. It was fortuitous that there was a teacher with recent experience in network management at Mt Barker who was also a potential IT Coordinator. I find that Ms Schupelius clearly had Mr McDonald in mind after he commenced at Brighton for a future role as Coordinator and also as someone who could potentially look after and manage a network. She needed someone to fill both roles in 1997.

17. On the Judge’s findings, there was a foreseeable risk that the problems Mr McDonald had experienced at Mt Barker would occur at Brighton, for the same reasons as they had occurred at Mt Barker.

18. The letter of appointment [Exhibit P11] was dated 9 January 1997.  The letter appointed Mr McDonald to teach Computing to Year 12 and Maths to Year 11.  The evidence was that Mr McDonald was not given a copy of the letter, contrary to usual practice, until much later.

19. Although the Judge made no specific finding to this effect, it is apparent from his reasons that he found that Mr McDonald began to manage the computer network at Brighton, in much the same way as he had been expected to do so at Mt Barker: [317]. It appears that Mr McDonald took on this work, but that the school management was content that he should do so. The Judge said at [103]:

    … Mr McDonald may have taken on a larger role than that for which he was originally employed, but the school took advantage of this and did not attempt to stop him until later in the piece.  The school benefited from all his extra endeavours and the work he did was acknowledged to be of a high standard.  He was clearly working under pressure with the knowledge of his superiors in the school.  There was no risk management and no performance management of Mr McDonald at any time, except for one meeting later with Mr Mitchell.  Mr McDonald was never given any training for the complex work he was performing.

20. And so Mr McDonald finished up performing a similar role at Brighton to that performed at Mt Barker.  The Judge said:

    [70]As I have said, Mr McDonald was given no training or assistance at Mt Barker in managing the network. Brighton was an even larger school and therefore the difficulties were multiplied. Mr McDonald started to fix the computers which were outdated and in need of repair or upgrade. He needed to do this in order to teach his own computing lessons. He was left to his own devices and continued to clean and repair the computers because no-one else did the work. Mr McDonald did not consider that the position of curriculum manager involved building or maintaining networks.

    The Judge said a little later at [73]-[74]:

    [73]... In 1997 Mr McDonald was therefore carrying out his ordinary teaching workload, together with attempting to build and manage the networks for the new computer system. It fell to him, in the absence of anyone else, to attempt to deal with requests and complaints from teachers and students when the computers were not working correctly. Some of the teachers were in need of assistance because of their lack of understanding of the new technology. Of course, students also required assistance when the computers malfunctioned.

    [74]As a result, there was a lot of after-hours work by Mr McDonald and Mr Crompton. They regularly worked at night and on weekends, trying to get the equipment operating properly. It was not possible to do that work during ordinary hours as access to the computers was required by students and staff during school hours. Mr McDonald was clearly working under pressure yet neither the school nor DECS attempted to manage a potentially risky situation regarding the health and welfare of Mr McDonald.

21. During 1997 Mr McDonald was asked to build computer networks that Brighton needed. It appears that no-one else was available and better qualified, even though Mr McDonald lacked qualifications in this area: [71]. In April 1997 Mr McDonald was successful in applying for appointment as Acting Coordinator of Information Technology Across the Curriculum: [81] and [315]. His teaching load was reduced from five subjects to four. It became apparent that Mr McDonald needed help. It was difficult to cope with the teaching load and with the work that he was doing on the computer networks. He told Ms Schupelius about this. In response, Mr Crompton was engaged on a part-time basis to help Mr McDonald.

22. In January 1998, again following a successful application, Mr McDonald was appointed to the position of Coordinator of Curriculum Management Information Technology and Information Technology Across the Curriculum for a five year term from January 1998 to January 2003: [84] and Exhibits P50 and D91.

23. Mr McDonald continued to have difficulty with his workload. After a discussion with Mr Schupelius, his teaching load was reduced to two subjects: [86]. This was in 1998.

24. The Judge found that Mr McDonald was “not managing his workload” and that Ms Schupelius was aware of this: [75] and [86].

25. The Judge found that with Mr Crompton’s help, things nevertheless proceeded “reasonably well” during the balance of 1998 and 1999: [77].

26. At the end of 1999 Mr Crompton left Brighton, and Damien McDonald (Mr McDonald’s son) was employed on a part-time basis to assist Mr McDonald: [78]. At about this time a new computer network had to be built. This took a considerable amount of Mr McDonald’s time: [78].

27. During 2000 more computers were needed.  A decision was made to buy second hand computers because of the limits on the funding that Brighton had.  A lot of work had to be done on the computers to bring them up to standard.  Apparently this task fell also to Mr McDonald, and made heavy demands of him.  In September or October 2000, Mr Hutchins was employed as a part-time School Services Officer (“SSO”) to help him.

28. Before the Judge various witnesses blamed or criticised Mr McDonald for the decision to buy second hand computers. The Judge found that this was wrong, and that the ultimate decision was not made by Mr McDonald: [154] and [157].

1. With reference to this period to the end of 2000, Mr McDonald claimed that “he was exposed to excessive workloads”: [80].

2. The Judge summarised his findings relevant to the period at Brighton to the end of the year 2000.  Relevantly, in those findings the Judge found:

   [181]From the evidence and from my observations of the witnesses relevant to this period of time, I make the following findings:

   …

   6.     Ms Schupelius, aware of Mr McDonald’s lack of appropriate qualifications in relation to “hands on” maintenance and repair of computing equipment, chose to promote him to acting Coordinator, and then later to Coordinator, to fill a role that she had not been able to otherwise fill. That role required work in managing the network. Mr McDonald filled the void, which was a void of increasing importance because of the rapid increase of information technology at Brighton and no training or performance management was put in place.

   7.     Ms Schupelius knew that Mr McDonald was performing work which was not within his job description but she allowed him to continue the work. Mr McDonald had fallen into a “fix-it” role by default but was not qualified to do the work. His only experience was during the previous year at Mt Barker. His “fix it” computer experience overall was limited, and he had experienced difficulties in coping at Mt Barker because of the pressure of the work. DECS was aware that he had experienced trouble at Mt Barker and that he had not accepted the Modbury job for the same reason.

   8.     Mr McDonald took on too much and went far beyond his nominated role in the interests of setting up the network and managing it. He did this in good faith and was successful in what he did. Ms Schupelius and her staff benefited from his work, but Mr McDonald was not line managed or counselled. He worked long hours until late at night and on weekends because he could not get access to computers until after hours.

   9.     He was allowed to continue to do this without any query from the administration, until he complained about his workload. No consideration was given to performance managing Mr McDonald or providing him with appropriate training. There was probably no-one suitable except the principal or Mr Sando.

   …

3. In the same para [181] the Judge also found that Mr McDonald was not effectively “line managed” by his superiors at the school, by which we take him to mean that he was largely left to his own devices, and so the excessive workload was not identified and dealt with.  The Judge also found that Mr Nelligan failed to manage properly the SSOs who worked with Mr McDonald.

4. The next significant events occurred late in 2000 and early in 2001.

5. Late in 2000 Mr McDonald had a conversation with Ms Thornton, another teacher. What she said caused Mr McDonald to believe that when his appointment as Coordinator expired (in January 2003) he would not be reappointed as Coordinator. Despite evidence from Ms Thornton suggesting that she did not say anything to this effect, the Judge found that there was a conversation with her along the lines claimed by Mr McDonald: [96].

6. This led to Mr McDonald confronting Mr Nelligan, who was the school’s Business Manager. There was an angry confrontation. Mr McDonald told the Judge that Mr Nelligan, by the manner in which he responded to Mr McDonald’s challenge, led him to believe that what Ms Thornton had said was true: [91]. Although Mr Nelligan denied this aspect of the conversation, the Judge preferred Mr McDonald’s evidence, rejecting that of Mr Nelligan: [181] subpar 12. The Judge also found that Mr McDonald probably “over reacted”, but found that Mr Nelligan in certain respects had behaved with poor judgement.

7. A contributing factor was a decision by Mr Nelligan in January 2001 to employ Mr Goode to work in the area in which Mr McDonald was working, without consulting Mr McDonald: [180]. It seems that Mr McDonald resented this decision by Mr Nelligan.

8. The Judge summarised the position as it was in early 2001 as follows:

   [176] … My view is that Mr McDonald’s overall description of the difficulties he experienced with his workload in developing and managing the network is basically confirmed by the other witnesses. It was clear that Mr McDonald was being placed under pressure. It is also clear that some of that pressure was created by himself in taking on tasks that were probably not strictly required of him. However, it was understandable that he saw himself as the person responsible for attending to these matters as they arose. There was after all no-one else putting their hand up to claim responsibility, and nobody gave him any specific instructions to desist from the work or to manage his performance in any way.

9. The result of all this was a letter of 23 January 2001 from Mr McDonald to Ms Schupelius, by which letter Mr McDonald resigned from his employment: [Exhib P59]. In this letter, Mr McDonald said that he was resigning “… because of the impossible work situation that I have been placed in by my employer …”. The Judge said this letter was a result of Mr McDonald’s dissatisfaction with his situation, that is, an excessive workload, a role that was not properly defined or supported by management and uncertainty about his future at Brighton: [91]. The resignation appears to have been treated as not effective.

10. The letter led to two meetings.  The first was a meeting on 29 January 2001 between Mr McDonald, Ms Schupelius, Ms Cochram and Ms Stadler.  Ms Cochram’s position was District Superintendent.

11. The Judge found that Ms Cochram understood that Mr McDonald was making known to her a grievance or complaint of substance, and was not merely seeking guidance or advice. The Judge found, drawing on notes made of the meeting [Exhibits P51 and P51A], that matters canvassed include Mr McDonald’s workload, the actions of Mr Nelligan, plans for information technology management at Brighton and other related matters. Ms Cochram agreed to speak to Ms Schupelius: [161]-[168].

12. Similar issues were canvassed at a meeting that took place on 7 February 2001 between Mr McDonald, Ms Cochram and Ms Schupelius. It appears to have been agreed that Mr McDonald would be freed of what the Judge called his “fix it role”, and freed from having to provide technical support for the information technology systems at Brighton. He would be allowed to concentrate on his role as IT Coordinator: [174]. Ms Schupelius was to tell the relevant staff about the scope of Mr McDonald’s responsibilities, as discussed.

13. Another matter raised at the meetings proved to have significance later on.  Mr McDonald raised the question of his tenure at Brighton.  It appears that Ms Schupelius responded in a manner that indicated that his appointment to Brighton might have been for ten years.  That was not the case, but when Mr McDonald’s tenure was raised, it seems that Ms Schupelius responded in a manner that indicated that she was not certain about his tenure, but thought it might have been a ten year tenure.  The Judge summarised the outcome of these meetings as follows:

    [120]Following the meeting that Ms Schupelius attended, Ms Cochram thought that progress had been made and that Mr McDonald’s role as Coordinator had been clarified. In that meeting Ms Schupelius suggested that his teaching load be further reduced but Mr McDonald objected to that. Ms Cochram said there seemed to be a reluctance on Mr McDonald’s part to take on the professional development role because of the significant emphasis that he was placing on the technical side of the role. She thought that Mr McDonald seemed more comfortable dealing with the technical side of it rather than the professional development side. It appears that the end result of the meetings was that the issues regarding Mr McDonald’s role were to be managed at the school level. It was left to Ms Schupelius to take action on the outcome of the meetings. As I have indicated, that did not occur because Ms Schupelius left the school within a few days. The problems were allowed to remain unresolved and the situation deteriorated. …

    Ms Schupelius left the school for an overseas appointment within a matter of days, and on the Judge’s findings she failed to follow through as agreed. Staff at Brighton were not told about the redefinition of Mr McDonald’s duties: [120] and [175]. The question of the duration of Mr McDonald’s appointment to Brighton was not resolved.

14. Likewise, on the Judge’s findings, Ms Cochram failed to follow up on the matters raised at the meeting, to ensure that agreements had been implemented. This was despite telephone requests from Mr McDonald and Mr Potts. She failed to bring to the attention of Mr Potts, the Acting Principal after Ms Schupelius left, the effect of the arrangements that were made: [178].

15. The events just related also played a part in what was to come.

16. Mr Potts was Acting Principal at Brighton from February 2001 until July 2001.

17. Neither Ms Schupelius nor Ms Cochram informed him of the outcome of the meetings they had had with Mr McDonald.

18. Not surprisingly, staff at Brighton were unaware of the change in or redefinition of Mr McDonald’s role. They continued to ask Mr McDonald to deal with matters he thought were no longer his responsibility. Mr McDonald raised the issue of his workload with Mr Potts while he was Acting Principal. Mr Potts said that he would discuss it with another staff member, but according to Mr McDonald nothing changed: [185]. The effect of the Judge’s findings is that in this period nothing effective was done about the problem: [192].

19. Mr McDonald also raised with Mr Potts things being done by other staff members which Mr McDonald considered were an attempt to undermine him in areas of his responsibility.  He described these as incidents of bullying, victimisation and harassment.  The Judge found that these complaints were well founded, at least in substance.  The Judge acknowledged that Mr McDonald reacted badly, and became aggressive.  However, referring to these matters the Judge said at [198] that they:

    … could only be regarded as deliberate tactics to harass him. There could be no other motivation in the absence of any consultation with him, and it did just that. …

    The Judge found that Mr Nelligan was involved in this conduct.

20. The issue of Mr McDonald’s tenure remained unresolved. Mr McDonald raised it with Mr Potts. Mr Potts told Mr McDonald that Ms Cochram would respond. Although in July 2001 a meeting with Ms Cochram was arranged, she did not attend due to illness: [192]. During the time when Mr Potts was Acting Principal, the issue of Mr McDonald’s tenure was not resolved: [187]. The Judge made the following finding in relation to Ms Cochram at [204]:

    I find that the District Superintendent did nothing to follow up the reasonable inquiries of Mr Potts as to what had been discussed regarding Mr McDonald’s suggested ten-year tenure. I find that she was remiss in not taking up Mr McDonald’s grievance and leaving the resolution of it to the school. It should have been obvious to her that, with the personalities involved, this grievance was never going to be resolved at the school level. It was Ms Cochram’s duty to resolve this matter and to do so promptly.

21. Mr Mitchell took up the position of principal at Brighton during July 2001.

22. Mr Mitchell gave evidence of a meeting with Mr McDonald on 2 August 2001. He said that Mr McDonald was angry, agitated and aggressive: [243].

23. Mr McDonald wrote a lengthy memo to Mr Mitchell on 17 October 2001: [Exhib P60]. The memo does not refer specifically to the issue of Mr McDonald’s responsibility for maintaining the computer network and for repairing computers. In the memo Mr McDonald identified certain issues that needed to be considered: who was in charge of the Curriculum Network, the role of Mr Goode and Mr Douglass, and who was their line manager. He drew to Mr Mitchell’s attention a number of matters that he summarised, these being in the nature of deliberate obstructions to Mr McDonald’s performance of his work. At [211] the Judge found that the role of Mr Goode and Mr Douglass had “never been clarified”, and that as Coordinator, Mr McDonald was entitled to have these matters dealt with. The Judge also found that Mr Goode or Mr Douglass had been responsible for a number of the matters of which Mr McDonald complained, and so accepted that they were knowingly making it difficult for Mr McDonald to discharge his duties: at [212].

24. On 19 October 2001 there was a meeting involving Mr McDonald, Mr Mitchell, Mr Goode, Mr Douglass, Mr Nelligan and Mr Sando. The purpose of the meeting was to clarify the roles of Mr McDonald, Mr Douglass and Mr Goode and their reporting roles in relation to Mr Mitchell, Mr Sando and Mr Nelligan. During the meeting Mr McDonald became very angry: [220]. A few days later Mr McDonald apologised to Mr Mitchell: [Exhib D146]. The Judge found that although Mr Mitchell realised “something was clearly wrong with Mr McDonald” at [220], Mr Mitchell failed to investigate adequately Mr McDonald’s concerns. The Judge said at [220]:

    …They were serious allegations, including deception and dishonesty, amounting to harassment in the workplace, and should have been investigated by Mr Mitchell.

    The Judge found that the failure to investigate the allegations amounted to a failure on the part of Mr Mitchell to take proper care for the safety of Mr McDonald, and that this conduct was also a breach of the implied term of the contract of employment requiring maintenance of mutual trust and confidence: [221]. See also [245], [247].

25. It does not seem that there was any bullying or harassment of Mr McDonald in the period between October 2001 and mid-2002. The Judge did find that Mr Mitchell had, without any valid reason, prevented Mr McDonald from standing for election to the Governing Council at Brighton [258]. Mr McDonald also complained that he had been excluded from participation in other committees at Brighton.

26. In May 2002 Mr McDonald was appointed a Key Teacher: [Exhib D100]. 

27. At about this time another significant event occurred. 

28. The Coordinator’s position, occupied by Mr McDonald, was reviewed. The result of the review was that the position was redefined, and assigned to a higher grade attracting a higher remuneration: [224]. This was to take effect from January 2003.

29. In June 2002, Mr McDonald applied for appointment to the position, as did other persons.  No doubt the position was advertised bearing in mind that Mr McDonald’s appointment as Coordinator of Learning Technologies was due to expire in January 2003. 

30. The Judge found that the position was redefined in a manner that was disadvantageous to Mr McDonald.  The Judge found at [225]:

    The job was specifically redefined to address those areas in which Mr Mitchell felt that Mr McDonald had been deficient. They included “the teaching of teachers” and planning for the future. It seems clear that because of his failure to give as much time as Mr Mitchell considered he should have given to these matters, Mr McDonald would not get the job. Mr McDonald said that he could not spend time on those matters because of the distractions in managing the network and helping staff and students resolve technical problems. The way the job was reclassified made it highly unlikely that Mr McDonald would be the successful applicant.

    Moreover, Mr McDonald was not consulted about the redefinition or redescription of the position: [231]. The Judge found that Mr Mitchell knew that Mr McDonald would be disadvantaged, because Mr McDonald had been involved in network management to the detriment of his other duties as Coordinator, and so probably would not be able to produce evidence of good performance in what had become important aspects of the position: at [226].

31. Not only was Mr McDonald’s application for appointment unsuccessful, he was not interviewed for the position.  That was a decision by the interview panel which comprised three persons, one of whom was Mr Mitchell.  The evidence before the Judge was to the effect that the decision as to the persons to be interviewed was based on the content of their respective applications, and the committee members considered that Mr McDonald’s application was inadequate, in particular in that he failed to provide evidence of achievements in what were now seen as key areas.

32. The Judge rejected an argument by Mr McDonald that this was part of a “conspiracy” to get rid of him: at [226]. But the Judge considered that the panel’s decision was unfair to Mr McDonald, because the deficiencies in his application were attributable to the demands made of him and to the failure in the past to define his role adequately or to give him appropriate performance management: at [230] and [231].

33. The evidence of the panel members provides no support for a finding that they acted with a view to disadvantaging Mr McDonald, or with a view to removing him from Brighton.  The evidence of the two panel members indicates that they acted quite independently of Mr Mitchell, and it was not suggested in evidence that they were not independent.

34. But the Judge found, in effect, that in relation to the filling of the new position Mr McDonald was dealt with poorly by Mr Mitchell.  The Judge relied on the failure to consult Mr McDonald about the redefinition of the position, on the circumstance that the deficiencies in Mr McDonald’s application were attributable to unfair demands made of him in the past, and on the failure to give Mr McDonald some guidance as to how he might address key aspects of the application, and the failure to soften the blow of the refusal of an interview: at [224]-[232].

35. Mr McDonald was told that he would not be interviewed for the position by a letter of 17 June 2002 from Mr Mitchell.  By a letter dated 27 June 2002 he was informed that his application for the position had been unsuccessful, and that if he wished to appeal he should do so by 5.00 pm on 3 July 2002: [Exhib D150].  He did not receive this letter until 1 July 2002. 

36. Instead of appealing, Mr McDonald complained to Ms Hyde, the District Superintendent: [232], [275]. His complaint was made in a telephone call.

37. This whole incident is of some significance, because the Judge not only criticised Mr Mitchell’s handling of the matter, but made a finding that Mr Mitchell was trying to remove Mr McDonald from Brighton: [231].

38. Not surprisingly, this episode had an adverse effect on Mr McDonald.  He was very upset.  There was an angry confrontation with Mr Mitchell on 27 June. 

39. The Judge accepted evidence from Mr McDonald that this was “the straw that broke the camel’s back”: at [265]. At [268] the Judge found:

    That incident was the culmination of various attempts by Mr Mitchell to undermine Mr McDonald’s authority and make it impossible for him to get on with his job. It was part of Mr Mitchell’s plan to have Mr McDonald transferred out of the school as soon as his five-year co-ordinator’s term expired in January 2003.

40. Soon after this Mr McDonald provided a medical certificate to the effect that he was suffering from “stress/anxiety disorder”, and would be unfit for work from 20 July 2002 to 20 September 2002: [Exhib P61]. The Judge found that Mr McDonald made a claim for compensation under the WRC Act at this time, but withdrew the claim soon after: at [233]. In fact Mr McDonald did not lodge the claim until 18 December 2002: [T720, T820]. Nothing turns on this. A month or so after lodging the claim in December, when he was advised that he could not claim damages if the claim arose from a compensable disability (we will return to this issue later), Mr McDonald withdrew the claim for workers compensation and claimed an entitlement to sick leave.

41. Mr McDonald returned to work on 23 September 2002.

42. The Judge noted that while Mr McDonald was absent on leave, neither Mr Mitchell nor anyone in a position of authority made any inquiry about his welfare: at [234]. The Judge criticised Mr Mitchell for this. The Judge also found that while Mr McDonald was on leave nothing was done by Mr Mitchell to deal with or to manage the matters about which Mr McDonald was complaining: at [241].

1. On Mr McDonald’s second day back at work in September 2002 Mr Mitchell came to his office and told Mr McDonald that he was obliged to complete the DECS Placement Form.  The purpose of completing the Form was to apply for an appointment to a position once (according to Mr Mitchell) Mr McDonald’s appointment came to an end in January 2003.

2. Mr McDonald refused to complete the Form, claiming that he had a ten-year appointment to a position at Brighton.  Mr Mitchell told Mr McDonald that if Mr McDonald did not complete the Form, Mr Mitchell would.  In this respect Mr Mitchell appears to have been correct, because departmental procedures required that the Placement Form be completed by the end of September and that the Principal complete it if the teacher in question did not do so.  Mr McDonald would not complete the Form, and so Mr Mitchell completed it and sent it to the Department by letter dated 25 September 2002: [Exhib D154].  In a number of respects the Form was incomplete, as Mr Mitchell warned Mr McDonald it would be, because Mr Mitchell was not able to provide the information that the Form called for.

3. The Judge criticised Mr Mitchell for the manner in which he dealt with the Form. The Judge found that Mr Mitchell “confronted” Mr McDonald, showing no compassion for Mr McDonald’s circumstances. The Judge found that Mr Mitchell’s object was to have Mr McDonald removed from Brighton: at [235]. The Judge found that Mr Mitchell acted unfairly in the circumstances. The Judge said at [242]:

   ... I find Mr Mitchell’s decision to fill in the form unfair to Mr McDonald in the circumstances in which he confronted Mr McDonald on his return from sick leave, when he knew or should have known that he was placing Mr McDonald under duress. There was no immediate urgency for Mr Mitchell to complete the form at that stage.

4. On 26 September 2002 Mr McDonald telephoned the office of Ms Hyde, the District Superintendent, apparently claiming that he was initiating a “grievance procedure”.  He complained of bullying related to the Placement Form.  It appears that Mr McDonald was told that he had to complete the Departmental Form described as ED155, and documents tendered before the Judge indicated that he duly did so.  The relevant document was received in Ms Hyde’s office on 9 October 2002:  see Exhibit P64.  As a result of a conversation with someone in Ms Hyde’s office, on 16 October 2002 Mr McDonald also provided a detailed written summary of his complaints to Ms Hyde: [Exhib P62].  The Judge was critical of the manner in which Ms Hyde dealt with these complaints.  The Judge found that she did nothing to resolve or deal with the grievances raised by Mr McDonald. 

5. At about this time, Mr McDonald took a further period of leave.  He provided a Certificate of Sickness dated 26 October 2002, certifying that he would be unfit for work from 26 October 2002 until 13 December 2002, due to stress and an anxiety disorder: [Exhib P67].

6. Thereafter, Mr McDonald did not return to Brighton or to any other school before 11 April 2003, the day on which he treated himself as dismissed.  When regard is had to school holiday periods, in the period from 2 July 2002 until 11 April 2003, Mr McDonald performed work in a school only in the period from 23 September to 27 September.  He was absent on either sick leave or long service leave for the remainder of this period.

7. In late 2002 and early 2003 Mr McDonald was provided with rehabilitation services by the Department, pursuant to provisions of the WRC Act. Between 18 December 2002 and 13 February 2003 Mr McDonald dealt with Ms Pearce, a psychologist and rehabilitation consultant employed by DECS. She in turn had a number of discussions with Ms Finster, a psychologist. Ms Pearce and Ms Finster were exploring the possibility of Mr McDonald returning to work in a suitable work environment. During this time two possible appointments to particular schools were considered, but in the end they were not suitable to Mr McDonald.

8. On 11 February 2003 Mr McDonald wrote to Ms Pearce, asking that his absences from work be treated as long service leave rather than as attributable to a compensable disability: [Exhib D111].

9. On 3 February 2003 Mr Mitchell had written to Mr Capozzo, a claims case manager: at [245]. Mr Capozzo had asked for background information about Mr McDonald’s claim for worker’s compensation. The Judge was critical of Mr Mitchell’s letter, and in particular of the attitude that it reflected. It is not necessary for us to go into detail. Suffice it to say that the Judge found that Mr Mitchell had failed to deal adequately with Mr McDonald’s various complaints, and that Mr Mitchell had been a contributor to the problems Mr McDonald experienced, yet in the letter in question Mr Mitchell was quite dismissive of Mr McDonald’s complaints: at [245] and at [246]. The Judge referred to some passages from the letter, and then said this at [250]:

   This typified the attitude of Mr Mitchell, which came across in his evidence in court. He showed a complete lack of understanding of Mr McDonald’s complaints and problems. He was clearly entering into areas which were none of his business and expressing opinions which he was not qualified to express. He was clearly prejudiced from a very early stage in his attitude to Mr McDonald. He did not attempt to manage the fact that Mr McDonald clearly needed help for his stress and anxiety and the fact that he had an outstanding grievance.

   The Judge went on to say that the letter was “vindictive” and showed a lack of concern on Mr Mitchell’s part for the well being of Mr McDonald: at [251].

10. By way of summary, the Judge criticised Mr Mitchell’s failure to deal with the matters about which Mr McDonald complained, and also criticised his dismissive attitude towards Mr McDonald’s problems.  On the Judge’s findings Mr Mitchell preferred to manoeuvre for Mr McDonald’s departure from Brighton, rather than deal with the problems that he confronted.  But as at 3 February 2003, Mr McDonald’s appointment had already come to an end, having expired on 22 January 2003.

11. The Judge also found that officers of DECS did not properly deal with Mr McDonald’s “grievance”.

12. The Judge found that Ms Schupelius and Ms Cochram failed to deal properly with the initial complaint in January and February 2001 about Mr McDonald’s workload, about the inadequate definition of his role and about his tenure: at [271]-[272]. The Judge found that between Mr Mitchell’s arrival at Brighton in the middle of 2001 and about the middle of 2002 Mr Mitchell was dismissive of Mr McDonald’s complaints, which now came to include complaints of bullying and harassment in the workplace: at [274]. The Judge found that DECS, through Ms Hyde in particular, did not take Mr McDonald’s complaints seriously once they were communicated to DECS. The Judge criticised Ms Hyde in this respect: at [277]. The Judge was critical of the manner in which DECS dealt with the grievance being expressed by Mr McDonald. Referring to the conduct of the officers of DECS after Mr McDonald communicated his grievance to Ms Hyde, the Judge said at [275] “The story that follows is a combination of inaction and incompetence on the part of DECS.”

13. That is the background to the letter from Mr McDonald to the Pay Section of DECS, which appears to have been received on about 11 April 2003: [Exhib D114].  In the letter Mr McDonald said:

    As from today I am dismissing myself from my employment with DECS.

    On 11 April 2003 Mr McDonald wrote also to the Premier, forwarding a copy of the letter to the Director-General of Education:  [Exhib P68].  In the letter Mr McDonald says:

    ... I am now placed in a position of having to dismiss myself from my employment as a consequence of discrimination, workplace bullying and my employer’s failure in their duty of care to me whilst working for the Department of Education and Children’s Services.

    Later in the letter he says:

    Therefore I dismiss myself from my employment.

14. In his reasons the Judge summarised the subsequent conduct by DECS and by the Office of the Commissioner for Public Employment in relation to the complaints made by Mr McDonald.  The Judge found at [297]:

    I have used the events subsequent to April 2003 to illustrate how the grievance was finally disposed of without any proper inquiry. The history shows a lack of competence by DECS. It also illustrates a failure to follow its own grievance procedures. In all, Mr McDonald was never given an appropriate opportunity for his grievance to be heard on its merits. The matter was simply shelved 12 months after he left his employment with the simple statement that the matter had been dealt with and that therefore no further action would be taken.

15. It was common ground at the trial that Mr McDonald was employed under a contract of employment. By the time of his appointment to Brighton Mr McDonald had been appointed to the teaching service on a permanent basis: s 15(1) of the Act. This meant that his employment could be determined by the State only in accordance with the provisions of the Act.

16. The Judge found that neither the provisions of the Act nor the provisions of the 1976 Regulations nor the provisions of the 1997 Regulations formed part of the contract of employment. The Judge found that “the general conditions of employment as covered in the Award” were express terms of the contract: at [335]. This appears to be a reference to award provisions relating to remuneration. We doubt whether any award provisions were to be imported into the contract of employment, but nothing turns on that. The Judge found that the letter appointing a teacher to a position at a particular school became part of the contract of employment: at [338]. The Judge found that various policy and procedure documents that DECS had formalised and adopted were not imported into the contract of employment.

17. It was common ground that it was an implied term of the contract of employment that the Minister was obliged to take reasonable care to provide a safe place of work and safe systems of work: [318] and [366].

18. The Judge found that the Minister was in breach of this implied term.  The Judge said:

    [372]As I have indicated earlier in my reasons, DECS failed to properly resource the technology roll-out through their failure to provide adequately trained staff in sufficient numbers. DECS targeted Brighton as a school to receive a large number of new computers, yet DECS failed to employ or train properly qualified information technology staff. This resulted in Mr McDonald, as IT Coordinator, suffering stress due to an excessive workload, which included work for which he had never been trained. I find that with the anticipated expansion of information technology planned by DECS it was not reasonable for DECS to expect existing untrained staff to keep up with new methods introduced by computers without proper training and assistance. There was simply no training and no risk management.

19. The Judge also found that it was an implied term of the contract of employment that neither party would, without reasonable and proper cause, conduct himself in a manner likely to damage or destroy the relationship of mutual trust and confidence between them as employer and employee: at [389]. The Judge appears to have found that such a term was to be implied as a matter of law: at [388].

20. The Judge found that the Minister was in breach of this term of the contract. The finding of breach was based on the actions and inaction of officers of the teaching service and officers of DECS over the period of Mr McDonald’s appointment at Brighton. The Judge found that from early on Mr McDonald was not given adequate support and that his workload was not properly supervised or managed; that Mr McDonald was subjected to an excessive workload in connection with the management of the computer network; that this impaired his ability to devote appropriate time to his teaching duties; that when Mr Nelligan employed additional staff to work on the computing network he did so without appropriate consultation with Mr McDonald; that subsequently there was no proper consultation with Mr McDonald about their functions and responsibilities in relation to those of Mr McDonald; that there was a failure by Ms Schupelius, Ms Cochram and Mr Mitchell to give proper attention to complaints by Mr McDonald, complaints that related to his workload, to his tenure, to his responsibilities and those of the SSOs and complaints of bullying; that Mr Mitchell behaved in a manner towards Mr McDonald that was “provocative” (which we take to mean that by his conduct Mr Mitchell demonstrated a refusal to give proper consideration to Mr McDonald’s concerns); that DECS (by its officers) failed to give proper consideration to Mr McDonald’s grievances. These matters are summarised by the Judge at [392]-[402]. The Judge concluded from this that the Minister was in breach of the implied term of mutual trust and confidence: at [404].

21. The Judge rejected a submission that Mr McDonald himself was in breach of that implied term.

22. The Judge found that the breaches of contract by the Minister were such that Mr McDonald was entitled to treat the contract of employment as at an end, because of “… conduct on the part of [the Minister] which is plainly inimical to a continuance of a contract of employment according to its express or implied terms …”, drawing on observations by Olsson J in Easling v Mahoney Insurance Brokers: [2001] SASC 22 at [99], [412]. The Judge summarised the factual basis for this conclusion at [430]-[438]. The focus of this summary is on the failure of the Minister between 2001 and 2003 to deal with the workload difficulties that Mr McDonald experienced, and the resultant stress and anxiety, and subsequent failure to deal properly with the complaints and grievances that Mr McDonald expressed. The Judge concluded at [439]:

    The cumulative effect of all of these matters caused Mr McDonald to give notice after he believed that the relationship between him and his employer had irretrievably broken down. He claims constructive dismissal for this series of events. In the end result I agree with him because, viewed objectively, the conduct as a whole was such that it was not reasonable to expect Mr McDonald to put up with it.

    The Judge specifically rejected a submission from the State that the real reason for Mr McDonald treating his contract as at an end was his failure to gain an interview for the Coordinator’s position in 2002: at [440].

23. It is not clear what part the failure to take reasonable care to provide a safe place of work and a safe system of work played in the conclusion that Mr McDonald was entitled to treat the contract of employment as at an end.  Our impression is that the workload problems that Mr McDonald experienced were less significant after 2001.  However, the excessive workload and lack of proper management led to the development of an anxiety state, and it seems that the anxiety state contributed to later events, in that the anxiety state would have made it difficult for Mr McDonald to cope with the grievances about which he complained which occurred during 2001 and 2002.

24. Early in the course of the trial the Judge had refused an application by Mr McDonald for permission to amend his Statement of Claim to claim damages for non-economic loss for pain and suffering, loss of dignity and reputation and loss of enjoyment of lifestyle and for psychiatric injury: at [451]. The Judge’s decision is the subject of a ground of cross-appeal by Mr McDonald. Having made that decision, the trial proceeded on the basis that the claim was for damages for breach of contract, for estoppel and for deceit: at [449]. The Judge rejected the claim for damages for deceit: at [483]. The claim of deceit was based on an allegation that Ms Bowden and Ms Schupelius planned to trick Mr McDonald into accepting an appointment to Brighton, knowing or anticipating that he would then be expected to repair computers and maintain the computing system: [62]–[66]. He did not refer specifically to the claim for estoppel, but there can be no doubt that damages are not claimable by reference to estoppel. The Judge rejected a claim for aggravated and exemplary damages: at [481].

25. The Judge then proceeded to assess and to award damages for loss of earnings.

    Mr McDonald’s Submissions on the Appeal

26. Mr McDonald provided to the Court two volumes of written submissions, amounting to about 400 pages in all.

27. The submissions are extremely detailed.  We have done our best to consider them.

28. A good deal of the material in the written submissions elaborates on matters that support findings made by the Judge in Mr McDonald’s favour.

29. Much of the material relates also to the suggested implied term requiring the maintenance of mutual trust and cooperation.

30. Because the submissions are a mix of submissions on fact and law, it is not always easy to tell, particularly in relation to the volume “Submission of the Respondent” whether and to what extent the submission is supported by evidence before the Judge.  Nor is it always easy to distinguish between what amounts to a submission and what is a reference to a matter of fact.

31. Many of the submissions made by Mr McDonald seek further or stronger findings of fact on matters which, on our approach to the case, cannot assist his case.  This is because the findings, to the extent that they are relevant, are referable to what Mr McDonald submits are breaches by the Minister of the duty to maintain mutual trust and confidence.

32. Much of the material would make no difference to the outcome of the claim for damages for wrongful dismissal, and accordingly takes the case no further.

33. Moreover, much of the material merely elaborates on findings that the Judge made.

34. These comments account for the bulk of Mr McDonald’s written submissions.

35. We give the following illustrations, emphasising that they are illustrations only.

36. The Judge made findings in favour of Mr McDonald on the topic of interviews between Mr McDonald and Mr Hill and Mr Boaden late in 1996: see, for example: [56], [59], [64] and [66]. In the second volume of his written submissions Mr McDonald in effect elaborates on this topic: at pp 15-22.

37. The Judge made findings in favour of Mr McDonald in relation to the shortage of appropriately skilled staff available to manage the increased use of information technology in schools for which the Minister was responsible: see, for example, reasons at [181]. The same applies to the question of proper management of staff working in this area. Mr McDonald deals with this in the second volume of his written submissions at pp 22-28.

38. The Judge made a number of findings in favour of Mr McDonald relating to the failure by the officers of the Department to investigate Mr McDonald’s grievances:  see the reasons at [220], [221].  Mr McDonald elaborates on this topic at pp 30-37 of his written submissions.

    Failure of the Judge to Apply the Rule in Jones v Dunkel

39. At the conclusion of the oral submissions on the appeal, Mr McDonald provided written submissions to the effect that the Judge should have drawn inferences adverse to the State by invoking the rule in Jones v Dunkel.[1]  Mr McDonald listed 28 separate matters in respect of which he submitted that the rule should have been invoked adversely to the State.

    [1]    Jones v Dunkel (1959) 101 CLR 298.

40. The only reference to the rule in Jones v Dunkel at the trial occurred towards the end of the parties’ submissions. The Judge indicated to the State that he was minded to invoke the rule and to draw an inference adverse to it arising from its failure to call a relevant witness, Mr Edson. The Judge dealt with that failure and its effect at [215]-[219]. In effect, the Judge accepted Mr McDonald’s evidence that he had provided sick certificates to Mr Edson in August 2001. He concluded that evidence from Mr Edson would not have assisted the State on the topic of provision of medical certificates by Mr McDonald. The State had submitted that all of the sick leave certificates produced by Mr McDonald were contained in the records tendered at trial.

1. In early 2002, Mr McDonald attended the Annual General Meeting of the Brighton Governing Council. He wished to nominate for election to the Council as a community representative. Acting on the advice of Mr Mitchell, the Chairperson, Ms Clancy, ruled that he was ineligible. The Judge found that there was no valid reason for Mr Mitchell preventing Mr McDonald from standing for election: [258]. We note, however, that the Constitution of the Governing Council was not tendered at trial. It was not possible therefore for the Judge to reach a conclusion about Mr McDonald’s eligibility to stand as a community representative. It is possible for example that, with a view to obtaining a spread of representation, the Constitution did preclude teachers at Brighton from standing for election as community representatives.

2. In our opinion, the evidence concerning Mr McDonald’s committee participation did not support a conclusion that Mr McDonald was being ostracised or excluded from participation in the School activities, let alone a breach of the implied contractual duty of care.

   Ms Hyde:  Failure to Address Grievance

3. Mr McDonald said that he first telephoned Ms Hyde, the District Superintendent, to complain about Mr Mitchell’s conduct in July 2002.  This occurred shortly after he learnt that he had not been shortlisted for interview for the new Coordinator’s position.  Mr McDonald did not lodge a written grievance at that time.  Shortly afterwards, he commenced a lengthy period of sick leave on account of stress.  Ms Hyde did not do anything by way of investigation of that grievance.

4. In October 2002, Mr McDonald lodged a written grievance with Ms Hyde: [Exhib P62]. The Judge was satisfied that Ms Hyde had not treated Mr McDonald’s grievance seriously: [277]. The Judge seemed to accept however that Ms Hyde had forwarded the document which he had received from Mr McDonald to the Legal Department within DECS. The Judge considered that Mr McDonald’s grievance had then gone into “a very large black hole within DECS”: [278]. The effect was that the grievance had still not been addressed when Mr McDonald terminated his employment on 11 April 2003.

5. In his written grievance [Exhib P62], Mr McDonald complained of bullying, ostracism, harassment, being sidelined after his complaints about his workload, exclusion from the shortlist of those to be interviewed for the new Coordinator’s position, the advancement of Daniel Goode and the absence of Performance Management.

6. We have addressed many of those complaints earlier in these reasons.

7. The failure by Ms Hyde to address Mr McDonald’s grievance constituted a failure of the established grievance procedure.  The District Superintendent, being the position occupied by Ms Hyde, had an important role in the implementation of that process.

8. In our opinion, however, the failure by Ms Hyde to address the grievance of Mr McDonald cannot reasonably be characterised as a repudiatory breach of the contract of employment.  Instead, it was simply a failure in one step of the grievance resolution process established by DECS itself and of that required by the Certified Agreement.  If Mr McDonald was dissatisfied with Ms Hyde’s response, it was open to him to refer the matter further, either to the Executive Director of Human Resources within DECS or to the President of the AEU: [cl 13.9 of the Certified Agreement, Exhib D196].  Alternatively, it was open to him to exercise his right of appeal to the Director General of Education.

9. We also consider that the failure by Ms Hyde to address Mr McDonald’s grievance may have been more serious had Mr McDonald been reappointed to Brighton in 2003.  That would have meant that Mr McDonald was being placed again into circumstances about which he had an unresolved grievance.  However, when the Placement Officer decided that Mr McDonald should be placed in a different school, that consideration was avoided.

10. We also note that Mr McDonald did not, in his letter of resignation of 11 April 2003, identify the failure to address his grievance as one of the matters causing him to regard his contract as at an end.  In addition, Mr McDonald did not himself follow up on his grievance by contacting Ms Hyde after October 2002.

11. Although we regard the failure of Ms Hyde to address Mr McDonald’s grievance, as found by the Judge, to be a serious matter, we do not consider it to be so serious that it could reasonably be characterised as a breach of the implied contractual duty of care.

    General

12. So far, we have considered the various circumstances raised by Mr McDonald separately.  We have concluded that none, by itself, amounts to a repudiatory breach of the implied contractual duty of care.

13. It is appropriate to consider, as did the Judge, the cumulative effect of these matters.  Before doing so it is appropriate to consider some other aspects of the conduct of DECS.

14. Mr McDonald lodged a claim for compensation under the WRC Act on 18 December 2002. His claim form bears the date 8 July 2002 but it was not lodged until 18 December 2002. In addition to commencing an investigation of Mr McDonald’s entitlement to compensation on 18 December 2002, DECS immediately referred Mr McDonald to a rehabilitation consultant within DECS, Ms Pearce. Ms Pearce first met Mr McDonald on 19 December 2002 and thereafter had a number of further meetings with him. The meetings were directed to assisting Mr McDonald to return to work as a teacher: [T2404]. Ms Pearce referred Mr McDonald to a psychologist, Ms Finster, and took other steps to address Mr McDonald’s concerns. The activities of Ms Pearce were carried out as part of the discharge of the Minister’s obligations with respect to rehabilitation under the WRC Act but they tend to contraindicate a breach of the implied contractual duty of care. The activities of Ms Pearce came to an end on 11 February 2003 when Mr McDonald told Ms Pearce that he wished to withdraw his claim for workers’ compensation and to pursue “other forms of redress”: [Exhib D110].

15. The steps taken by DECS at the end of 2002 and at the beginning of 2003 to place Mr McDonald in an appropriate school are also relevant.  On 27 November 2002, DECS placed Mr McDonald at the William Light R-12 School for the period from 23 January 2003 to 27 April 2003.  The letter of appointment indicated that he was being placed as a teacher of Year 10 subjects, including Year 10 mathematics.  Mr McDonald told Ms Pearce, on 23 December 2002, that he was not prepared to be placed at any school until issues from past schools (Mt Barker and Brighton) had been settled. 

16. Later, he raised a concern about being required to teach mathematics at the William Light R-12 School as he had had not formal training in mathematics.  Ms Pearce informed the relevant Placement Officer of Mr McDonald’s concerns.  In response, the Placement Officers made a placement of Mr McDonald to Heathfield High School for the period 23 January 2003 to 21 January 2004.  Mr McDonald had some concerns about the subjects which he may be expected to teach at Heathfield High School.  It is not clear whether he communicated those concerns to Ms Pearce or to the Placement Officer in January 2003.  However, because of his health, Mr McDonald felt unable to accept the position at Heathfield and told Ms Pearce that he was “willing to let [the] position go”: [T806].  The Placement Officer was, however, willing to keep the position at Heathfield High School open for Mr McDonald.  The Officer proposed making arrangements for the position to be filled temporarily pending Mr McDonald’s recovery of fitness for work.  However, Mr McDonald then arranged to take long service leave and, at the expiration of that period of leave, submitted his resignation.

17. In summary, it can be said that in late 2002 and early 2003, DECS Rehabilitation Coordinator was addressing the issues with a view to enabling Mr McDonald to resume work.  DECS’ Placement Officers were willing to make appropriate placements for Mr McDonald, including by withdrawing his original placement at the William Light R-12 School, and by delaying his starting date at Heathfield High School to accommodate his circumstances.

18. On the Judge’s findings, DECS did have knowledge that aspects of Mr McDonald’s work were causing stress resulting in incapacity.  The Judge accepted that Mr McDonald had told Mr Boaden about this in late 1996 and he accepted that Mr McDonald had provided certificates of sickness at Brighton indicating his incapacity and the reasons for that incapacity. 

19. The discharge of the implied contractual duty of care required the Minister to take account of Mr McDonald’s individual circumstances.[91]  When one stands back and looks at the overall circumstances of Mr McDonald from December 2000 to 11 April 2003, it is not possible, in our opinion, to conclude that the Minister was in breach of that implied contractual duty.  Many of the troubling matters, including the issues concerning work definition and workload, had been addressed and resolved well before the end of 2002.  Others, such as Mr McDonald’s reaction to not being shortlisted for interview for the new Coordinator’s position, the claim to have tenure at Brighton and his concerns about committee participation could not, in our opinion, indicate a breach of the implied contractual duty at all.  Significant aspects of the bullying, harassment and victimisation of which Mr McDonald complained had been addressed and resolved by the end of 2001.  When put in context, we do not consider that the conduct attributed to Mr Mitchell on 24 September and the failure by Ms Hyde to address appropriately Mr McDonald’s grievance suggest a repudiatory breach of the implied contractual duty of care.  In our respectful opinion, the Judge erred in treating findings of what amounts to poor management of Mr McDonald’s area of work, or inappropriate treatment, as establishing breaches of his contract of employment.

    [91]   Koehler v Cerebros (Australia) Limited [2005] HCA 15 at [35]; (2005) 222 CLR 44 at 57.

20. Mr McDonald himself accepted that, subject to three matters, a continuing contractual relationship with the Minister was possible.  His evidence at trial attached more significance to the failure of Ms Hyde to investigate his grievance than did his conduct in later 2002 and early 2003.  In relation to the failure of Ms Hyde to investigate the grievance, Mr McDonald said:

    It was a turning point.  I knew when I wrote the letter to the Premier it was the end of the road.  What we asked for when I was with Wendy [Finster] and with Ms Pearce is that we asked two things that were really quite simple, don’t put the fellow back into a place of work where it caused him harm; place him in a position that he is trained to deal with and look into the grievance.  We are all entitled to have a grievance process, look into the grievance, look at getting these three done and when we got those done we could have kissed and made up.  But they were so arrogant.  They didn’t even want to come to the party on that.  [T819]

21. Contrary to that evidence, the Placement Officers of DECS were, as already noted, seeking to make an appropriate placement for Mr McDonald in 2003.  The failure of Ms Hyde to investigate Mr McDonald’s grievance was a failure in the execution of but one step in the overall grievance process.  We have already said that we do not consider it capable of being regarded, objectively, as a repudiatory breach of the implied contractual duty of care.

22. Accordingly, we do not consider that the award of damages to Mr McDonald can be upheld on the basis that the Minister had breached, in a repudiatory way, the implied contractual duty of care entitling Mr McDonald to bring his contract of employment to an end.

23. We have reached this conclusion without reference to the means of addressing grievances and the alternative means of redress which were available to Mr McDonald.  The statutory, award and departmental regimes available to Mr McDonald are also relevant to the question of whether the Minister’s conduct should be regarded as repudiatory.  Apart from Ms Hyde’s failure to investigate Mr McDonald’s grievance, there is no suggestion that the Minister, or senior officers of DECS, were not prepared to implement those means of redress in the case of Mr McDonald.  The Judge was critical of the conduct of officers of DECS after 11 April 2003 but that conduct occurred after Mr McDonald had terminated his employment, taking himself outside the scope of the statutory, award and departmental regimes.

24. If it had been necessary to do so we would have regarded the alternative means of redress available to Mr McDonald as an additional reason to regard the Minister’s conduct relied upon by Mr McDonald as not having been repudiatory.

25. It is not necessary to address the submission of the State on the topic of affirmation by Mr McDonald of his contract of employment.  The State submitted that the trial Judge had erred in failing to find that Mr McDonald waived any right of action in respect of the Minister’s conduct after the time that Mr McDonald withdrew his letter of resignation of 24 January 2001; after the occasion in October 2001 when Mr McDonald met with Mr Mitchell [244], [245], and up to mid-2002 when Mr McDonald was not interviewed for the new position of Coordinator.

26. If we had not accepted the State’s submissions concerning breach of the implied term of mutual trust and confidence and the implied contractual duty of care, we doubt that we would have upheld this submission.  That is because of the cumulative nature of the breaches of contract alleged against the Minister.  However, as we have said, it is not necessary to determine this ground of appeal.

    Mr McDonald’s Cross-Appeal

27. We now turn to Mr McDonald’s cross-appeal. 

28. The grounds of complaint raised by the cross-appeal are somewhat repetitive.  Sometimes it is not clear precisely what complaint is made.  Nevertheless, we are satisfied that none of the grounds of complaint in the cross appeal are made good.  We propose to deal with the individual grounds in chronological order. 

    Ground One

29. This ground covers a number of matters. Some of them are matters that were raised by an application that Mr McDonald made during the trial for permission to amend his Statement of Claim. The Judge refused permission: [458]-[468]. Other grounds relate to matters originally pleaded by Mr McDonald, which were struck out before trial by a Master. As the Judge pointed out in his reasons, Mr McDonald did not appeal against that decision, although it appears that he protested to the Judge about it: [448].

30. We now turn to the topics or matters raised in this rather lengthy ground.

31. Mr McDonald complains that the Judge erred in not allowing him to lead medical evidence to support a claim for damages for non-economic loss suffered by him as a result of injury caused by the negligence of the Minister, and to support a like claim for damages for deceit or for damages for breach of the contractual duty of care.

32. The Master struck out the claim for damages for non-economic loss, treating that claim as barred by s 54 of the WRC Act. As we have said, there was no appeal from that decision. This complaint also appears to cover much the same ground as the proposed amendment to the Statement of Claim that the Judge disallowed. The Judge gave reasons for doing so at [450]-[457].

33. We agree with the Judge that s 54 of the WRC Act is a bar to the proposed claim for damages for non-economic loss. In any event, we agree with the Judge’s reasons for refusing to grant permission to amend the Statement of Claim during the trial.

34. Mr McDonald also claims that the Judge should have allowed him to lead medical evidence to support damages for non-economic loss flowing from personal injury caused by the deceit of the Minister, his servants or agents. That claim failed on the facts: [482]-[483]. We are not persuaded that the Judge erred in making the findings of fact that he made.

35. There is a separate complaint that the Judge erred in failing to give judgment (we assume for damages for non-economic loss) for “acts of bad faith”.  If this is a reference to the contractual duty to maintain mutual trust and confidence, then we have explained why in our opinion a term to that effect cannot be implied.  If it is a free-standing complaint, in our opinion the claim is not maintainable in law.  It cannot succeed. 

36. A further complaint is that the Judge erred in failing to award damages for personal injury to Mr McDonald resulting from what in our reasons we have described generally as “harassment”. Once again, in our opinion s 54 of the WRC Act is a bar to an award of damages on this basis, because any injury so caused would appear to amount to a compensable disability for the purposes of that section. As well, a claim for damages on this basis was struck out by the Master (see: [443]) and there was no appeal against that decision.

37. There is a further complaint that the Judge failed to award damages for pain and suffering caused to Mr McDonald’s family.  That was one of the matters that Mr McDonald sought to raise by the proposed amendment that was disallowed.  Nor can we identify any basis in law for such an award.

38. A further complaint is that the Judge should have awarded damages for various alleged breaches of the Trade Practices Act 1974 (Cth) (“the TPA”). Such claims were struck out by the Master, and so cannot be a basis for an award of damages.

39. This ground also claims that the Master erred in striking out the relevant parts of the Statement of Claim, but if that argument were to be pursued, it could only have been by way of an appeal against the Master’s decision or by persuading the Judge to grant permission to amend the Statement of Claim to re‑include relevant matters.  This did not happen.

40. None of the complaints raised by ground 1 should be upheld.

41. To some extent grounds 1.1 to 1.16 cover the same or similar ground, but in the interests of completeness we will deal with them separately.

    Ground 1.1

42. This ground appears to give more detailed particulars of grounds already dealt with, and there is no need to deal with it separately.

    Ground 1.2

43. This ground complains that the Judge did not uphold arguments advanced by Mr McDonald in response to the Master’s decision to strike out parts of his Statement of Claim.  We have already explained why this ground cannot succeed.

    Ground 1.3

44. This ground relates to a pre-trial decision by the Judge relating to a Notice to Admit given by Mr McDonald.  No basis for interfering with the Judge’s decision is made out.

    Grounds 1.4 and 1.5

45. These grounds repeat the complaint that the Judge should have awarded damages for personal injury.  We have dealt with that matter already.  We deal with other aspects of these grounds when dealing with the next ground.

    Ground 1.6

46. This ground repeats the complaints that the Judge should have awarded damages for personal injury caused by deceit, resulting from breaches of the TPA, under the Wrongs Act 1936 (SA), now the Civil Liability Act 1936 (SA) and for “serious and wilful acts of misconduct” by servants of the Minister in breach of s 54 of the WRC Act. We have dealt already with the claim relating to deceit and the TPA. As to the Civil Liability Act, this appears to be a reference to a claim for damages for negligence and so we need say no more about it.

47. We refer to the claim for a breach of s 54 of the WRC Act. The reference to “serious and wilful misconduct” suggests that Mr McDonald claims to have a right of action against other workers for a compensable disability, the claim being attributable to negligence of other workers that arose from or in the course of “serious and wilful misconduct”. Section 54(4a) does not bar a right of action against another worker if the disability is caused by the negligence of that worker and the negligence arose from or in the course of serious and wilful misconduct by the worker. If this right of action against another worker was to be maintained, in our opinion it should have been clearly pleaded and that would necessitate the naming of the other worker or other workers and, we consider, their joinder as a further party or parties. None of this occurred. In our opinion it is now too late to raise this matter in these proceedings.

    Ground 1.7

1. This ground repeats the claim that the Judge should have awarded damages for harassment.

   Grounds 1.8 and 1.9

2. These grounds repeats claims made earlier that the Judge should have awarded damages for personal injury, but now asserts that after April 2003 when Mr McDonald was no longer an employee of the Minister such claim is maintainable.  No such case seems to have been pleaded or made at trial.  Nor is there is any finding suggestive of a separate injury after April 2003.  Indeed, the findings are to the contrary.  These grounds are not made out.

   Ground 1.10

3. This ground asserts that the Judge should have awarded damages against the office of the Commissioner of Public Employment.  No such claim was pleaded and in our opinion this ground cannot be maintained.

   Ground 1.11

4. This ground asserts that the Judge should have allowed a claim based in estoppel. The Judge refers to this claim at [441]. The substance of the claim is a claim for payment for overtime and for additional work performed. The Judge appears to have rejected both claims at [531]-[534]. We are not persuaded that the Judge erred in this respect.

   Ground 1.12

5. This ground asserts that the Judge should have allowed a claim made by Mr McDonald for payment for time spent supervising students during the lunch hour.  The Judge deals with this claim at [535]-[538].  We are not persuaded that the Judge erred in rejecting this claim.  The Judge’s finding that it is normal practice for teachers to supervise students during lunch breaks accords with our understanding of the position.

   Ground 1.13

6. This ground asserts that the Judge should have awarded Mr McDonald damages for “loss of reputation”, flowing from the negligence of the Minister or from deceit or from breaches of the TPA or from a claim under the Civil Liability Act. The Judge dealt with this claim, or one aspect of it, at [541]-[542].  Our opinion is that such a claim was not maintainable in law on the basis claimed by Mr McDonald, and that none of the findings made by the Judge in his favour would lead to an award of damages under this head.

   Ground 1.14

7. This ground repeats the claim for damages for pain and suffering caused to Mr McDonald’s family.  That claim was not pleaded.  The Judge refused Mr McDonald permission to amend his Statement of Claim to include the claim.  The claim is not sustainable.  In any event, unless the family members were joined as plaintiffs, the claim could not have been pursued.

   Ground 1.15

8. This ground claims that the Judge erred in not making an award for “special damages”.  The Judge appears to have dealt with all heads of claim advanced by Mr McDonald.  In a separate judgment on the question of costs, the Judge dealt with some further matters that might be classed as special damages:  McDonald v State of South Australia (No 2) [2008] SASC 234. It suffices to say that nothing has been brought to our attention that called for an award of damages under this head.

   Ground 1.16

9. This ground asserts that the Judge should have awarded damages for a breach of duty on the part of the Minister in failing to rehabilitate Mr McDonald.  We consider that this claim is not maintainable.

10. In the balance of the Notice of Cross-Appeal, Mr McDonald identifies those paragraphs in the Judge’s reasons in which he says the Judge has erred.  Treating this as an elaboration of the grounds of appeal, there is no need to make further reference to individual paragraphs of the Judge’s reasons.

    Conclusion

11. For the reasons given above, we order that the appeal by the State be allowed and that the cross-appeal be dismissed.  The orders made in favour of Mr McDonald on 21 May 2008, 22 May 2008 and 26 August 2008 are set aside.  We order that Mr McDonald’s claim for damages against the State be dismissed.

12. We will hear the parties as to costs.