Taylor v Haileybury
[2013] VSC 58
•22 February 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2011 3965
| NICHOLAS ALAN TAYLOR | Plaintiff |
| v | |
| HAILEYBURY | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4-8, 11-15 and 18 February 2013 | |
DATE OF JUDGMENT: | 22 February 2013 | |
CASE MAY BE CITED AS: | Taylor v Haileybury | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 58 | |
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ACCIDENT COMPENSATION – Workplace injury – Psychiatric injury – Negligence – Duty of care – Foreseeability - Scope of duty to avoid psychiatric injury to employee – Breach of contract – Terms of contract – Accident Compensation Act 1985, s 134AB.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R.K.J. Meldrum QC with Mr G.A. Worth | Clark Toop & Taylor |
| For the Defendant | Mr T.J. Casey QC with Mr R. Kumar | Minter Ellison |
HIS HONOUR:
Introduction
Haileybury, the defendant, is a private school with three Melbourne campuses, one of which is in Brighton. Mr Nicholas Taylor, the plaintiff, is described on the website of StarNow[1] in the following terms:
“Nick Taylor
38 from Victoria, Australia
Actor
I am a unique person with great versatility and interests. I speak 3 languages (former high school teacher of French for 7 years). I’m very strong at many sports, I have stage experience in tap, ballet, plays and musicals from the age of 7. I also love music and appreciate all genres. I have a passion for performing/acting, whether it be film, theatre or tv, and I am a very reliable, diligent and honourable individual.”
[1]Exhibit 2. As to StarNow, the plaintiff described it as a talent agency: see T312.12.
Between the start of the school year in 2005 and May 2007, the plaintiff was employed by the defendant as a French teacher at its Brighton campus. At the start of May 2007, the plaintiff ceased work for the defendant as a result of suffering a psychiatric breakdown. The plaintiff has not worked since (although he has completed a number of short acting courses with the Victorian College of the Arts).
In this proceeding, the plaintiff claims pain and suffering damages and pecuniary loss damages pursuant to s 134AB of the Accident Compensation Act 1985. In essence, the plaintiff contends that his psychiatric breakdown and consequential injuries were caused by overwork in the course of his employment with the defendant. The plaintiff’s claim is pleaded in both negligence and breach of contract.
While the defendant admits employing the plaintiff during the 2005 to 2007 school years pursuant to Australian Workplace Agreements executed in late 2004, mid 2005 and early 2007, it denies any liability to the plaintiff, either in negligence or breach of contract.[2] That said, even though the plaintiff has never consulted a psychiatrist for treatment, nor taken any psychotropic medication for his condition (apart from St John’s wort for a period), at trial the defendant did not really dispute that, since May 2007, the plaintiff has suffered from a major depressive illness.
[2]A contributory negligence defence pleaded by the defendant was abandoned at trial: T218.23 - .26.
The plaintiff’s case as pleaded
In the plaintiff’s further amended statement of claim, the plaintiff pleaded that in 2005, he was allocated 28 periods of face-to-face teaching per week; in 2006, he was allocated 29 periods of face-to-face teaching per week; and in 2007, he was allocated 30 periods of face-to-face teaching per week. These were 50 minute periods.
It was then asserted in the plaintiff’s further amended statement of claim that this face-to-face teaching load was excessive. Instead, it was said that the plaintiff should have had a teaching load in 2005 of 25 periods of face-to-face teaching per week, and a teaching load of less than 25 periods of face-to-face teaching per week in 2006 and 2007, so as to give allowance for his “Head of House duties”. As pleaded, the plaintiff contends that, during the period from 2005 up to and including 2 May 2007, he suffered “severe injury consequent upon unreasonable and excessive stress and strain being placed upon him”. Particulars of the alleged unreasonable and excessive stress and strain given in the further amended statement of claim include:
(a)excessive contact time in respect of face-to-face teaching while being required to perform other duties;
(b)failing to provide the plaintiff with adequate preparation and marking time;
(c)requiring the plaintiff to work on Saturdays supervising sport while at the same time having imposed upon him a face-to-face teaching load and other duties and responsibilities which were excessive;
(d)assigning the plaintiff “an excessive load of weak students, badly behaved students and students with learning difficulties”;
(e)expos(ing) the plaintiff to poor and inefficient timetabling outcomes;
(f)having inadequate protocols to properly investigate, intervene and remedy bad behaviour by students;
(g)permitting the plaintiff’s work hours to be “considerably extended”, as a consequence of the plaintiff being required to “discipline all students in his class”; and
(h)failing to have appropriate policies for students and staff concerning bullying by and bad behaviour by students, thereby leaving it to the plaintiff to have a significantly increased workload on top of his face-to-face teaching commitments, which also were in excess of the respective provisions of the contracts of employment.
The plaintiff’s case at trial
In essence, the plaintiff’s case at trial was that he was substantially overworked by reason of being given too large a face-to-face teaching load, coupled with too many additional duties (home room teacher, head of middle school house, supervising Saturday morning sport, coordinating with other campuses, exam writing, preparation, correction, being assigned students of different levels in the one class etc). In addition, complaint was made concerning the provision of insufficient teaching time to complete the syllabus.
During the course of the plaintiff’s evidence-in-chief, the plaintiff tendered a document which purported to summarise the plaintiff’s work hours during 2006 and 2007 as follows:
HAILEYBURY DUTIES/HOURS (2006-07) 38 school weeks
HOURS PER WEEK
HOURS PER YEAR
8.10am – 4.10pm (at school tasks per week) Class/Homeroom/Yard Duty/Day Meetings + Events
40
1520
The following tasks were mainly performed outside the above hours
Saturday Sport x 24 weeks
1.9
72
At home class preparation/correction + whatever school task including vacation time
7.9
300
Professional Development that did not involve the whole school
0.25
10
Staff/Faculty/Sport Meetings/Meetings at other campuses
2.1
80
Middle School Parent/Teacher interviews
0.5
20
Year 9 Parent/Teacher interviews
0.15
5
Parent/Teacher/Student Social BBQs
0.15
6
School Information Nights
0.25
10
House Swimming Night Event
0.15
6
Speech Night
0.1
4
Work to prepare for replacement teachers when absent due to camp/sport/meeting/illness
0.25
10
Curriculum Planners
0.25
10
Exam Writing
0.25
10
Exam Correction
2
80
Interim Reports (Terms 1 + 3)
0.25
10
Main Reports (Terms 2 + 4)
4.7
180
Assessment for reports (Unit Tests/Assignments) Preparation/Correction
4.2
160
Head of House duties outside school sanctioned meetings/events
1
40
Year 7 Camp Reports
0.5
20
TOTAL HOURS
66.85
2553
During the course of his evidence-in-chief, the plaintiff made complaint about a number of matters that were not the subject of any pleading. No objection was taken to this evidence, presumably because it (this evidence) could be justified as relevant background material – or perhaps, in some cases, because the evidence was arguably relevant to issues of quantum. In order that there be no dispute about the scope and ambit of the plaintiff’s claim, I directed the plaintiff to identify with precision the details of each breach of duty and breach of contract relied upon by him in this proceeding. The terms of this direction also required the plaintiff to state, with respect to each breach of duty and breach of contract, what should have been done (and when) by the defendant to alleviate any risk of injury to the plaintiff.
Following that direction, the plaintiff filed and served a 12 page document setting out the substance of his case.[3] The document commenced by asserting that each of the matters submitted by the plaintiff to have been a breach of contract was also a breach of duty owed by the defendant to the plaintiff. Reference was then made to the High Court’s decision in Koehler v Cerebos (Australia) Limited,[4] before going on as follows:
[3]Email from plaintiff’s counsel sent 10 February 2013 at 10.01pm.
[4](2005) 222 CLR 44.
“The Plaintiff identifies the following as giving rise to knowledge by the Defendant of a risk of psychiatric illness which was not far fetched or fanciful. Elaboration is then set out below.
-Comments made in the Defendant’s document ‘Haileybury: Managing the Risk Library’ (PCB 367-415), said by the Defendant to have been created in 2005;
-Knowledge of the human resources and injury prevention/management industry as set out in the report of Ms Mellington (PCB 185-200);
-Oral complaints made by the Plaintiff to colleagues in 2006;
-The Plaintiff’s emails of September 2006 and March 2007 (PCB 416 and 419 – 422);
-Complaints made at the LOTE meeting of 28.02.07 (PCB 417);
-The Defendant requiring the Plaintiff to teach excessive face-to-face classes.
-The Defendant imposing on the Plaintiff a workload which was excessive in all the circumstances;
-The Plaintiff’s physical and psychological presentation in 2006 and 2007.
-Issues regarding the difficult behaviour of Year 8 boys at all times but in particular in 2006;
-Issues regarding the behaviour of X [a student] in 2007.
The 2005 ‘Haileybury: Managing Risk Library’ document at PCB 367-415 identifies at PCB 396 that policies regarding stress management and workplace counselling were required. At PCB 396, the risk arising from a lack of the policies specified on that page is identified as level 4 (short-term damage to the school’s reputation or serious injury or high financial loss). The likelihood of such risk was identified as level 2 (could occur at some time, unlikely). Compare a level 2 likelihood (rare, could occur under exceptionally rare circumstances). The Plaintiff submits a level 2 likelihood is likelihood greater than far fetched or fanciful.
No policies or processes for stress management or workplace counselling have been discovered. The Risk Library document was discovered by affidavit sworn on 13.01.12. Since then, the Plaintiff’s solicitors have sought further discovery and further affidavits of documents have bee (sic) sworn by the Defendant, but no later versions of the Risk Library document or the Treatment Plan have been discovered or produced.
The Plaintiff’s case is that during the course of the Defendant’s employment of the Plaintiff, the Defendant responded inadequately to the identified risks and failed to develop an adequate treatment plan. This is a breach of the Occupational Health and Safety Act 2004.[5] In doing so, this is a breach of the Defendant’s common law duty to the Plaintiff to take reasonable precautions to prevent foreseeable injury to the Plaintiff. These risks are identified at PCB 365-415 and the Treatment Plan is between PCB 375-402.
The Defendant holding the knowledge that such policies needed to be prepared in response to what is identified at PCB 396 as a risk, the Plaintiff submits must have given rise to knowledge in 2005 that its teaching staff were at risk of sustaining psychiatric injury due to the nature of their employment. Despite this, the Defendant imposed on the Plaintiff an excessive workload.
Having identified either 28 or 25 face to face class hours per week as a ‘full load’ – from which there would be deductions for extra duties and for Positions of Responsibility – it was a breach of the Defendant’s duty to require the Plaintiff to undertake a workload and face to face teaching periods in excess of the identified ‘full load’. Face to face teaching periods are just the beginning of the workload. Each additional face to face class creates additional out of class work, as demonstrated by Exhibit A.
In relation to the identification by the Defendant of a ‘full load’, duty to avoid or reduce the risk of psychiatric injury to the Plaintiff is invoked in the Koehler sense that it must be taken that it is reasonably foreseeable that by requiring a teacher to work significantly beyond a ‘full load’ it exposed him to the risk of injury.
Requiring the Plaintiff to continue working long hours, and/or undertake an unreasonably high face to face class load, after he had complained to his superiors (commencing in early 2006) that his workload was too high, was a breach of the duty owed by the Defendant to the Plaintiff.
By reason of the complaints made by the Plaintiff it was reasonably foreseeable that there would be a risk of the Plaintiff sustaining recognisable psychiatric injury if he was required to continue to perform a heavy workload with an unreasonably high number of face to face classes.
Given his verbal complaints commencing in early 2006 it must be taken, the Plaintiff submits, that the Defendant had at the very least knowledge that the Plaintiff was stressed and struggling with his workload and ‘it is notorious that stress and disturbance of mind may lead to a psychological disability’ (Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784, per Wilcox J at [330]).
At the very latest the Defendant was on express notice in writing in emails of September 2006 and March 2007 that the Plaintiff was struggling with his work duties. Duty is again invoked in the Koehler sense in that, in the Plaintiff’s submission, the content of each of those emails must give rise to reasonably foreseeability of the risk of the Plaintiff sustaining recognisable psychiatric injury, in the sense that following each of those emails it is clear that such risk to the Plaintiff is not far fetched or fanciful.”
[5]Notwithstanding this reference to the Occupational Health and Safety Act 2004, the plaintiff subsequently made it clear that he did not rely upon either the Occupational Health and Safety Act or any regulation in this case: see T371.7 - .20.
So far as what the plaintiff alleges the defendant should have done to alleviate the risk of injury to him is concerned, the plaintiff’s document continued as follows:
“In response to the acknowledgment of risk of psychiatric injury to staff, the Defendant should have:-
- Created and implemented policies regarding:-
o Employee assistance programme;
o The making of grievances by staff;
o Stress management;
o Workplace counselling;
o Peer support
-Educated Senior staff regarding the identification of risk of stress leading to psychological injury and the provision of assistance to fellow staff in dealing with such matters;
-Trained and provided information to all teachers regarding workplace stress and the policies of the employer to deal with such matters.
In respect of the Plaintiff specifically, the Defendant should have:-
-Reduced his workload as this was the cause of his stress;
-Counselled the Plaintiff;
-Offered the Plaintiff treatment to minimise the risk that stress would lead to psychiatric injury or to reduce the severity of such injury.”
The plaintiff’s document then continued with an analysis and argument concerning the terms of the contract between the parties and the various documents said to be relevant to the plaintiff’s claims. In this part of the plaintiff’s document, the plaintiff, “having identified either 25 or 28 face-to-face class hours per week as a ‘full load’”, then contended that the contract between the parties required the defendant to limit the plaintiff’s face-to-face teaching in 2005 to a maximum of 23 or 26 periods per week; in 2006, to a maximum of 22 or 25 periods per week; and in 2007, to a maximum of 21 or 24 periods per week. While the plaintiff initially gave evidence that in 2005 he had 28, 29 or 30 face-to-face classes,[6] later on he gave evidence (and it was common ground) that the plaintiff’s face-to-face teaching load in fact was for 2005, 28 periods; for 2006, 29 periods; and for 2007, 30 periods.[7]
[6]T132.5.
[7]T280.2 - .6.
The plaintiff
The plaintiff was born on 9 October 1974. He was 30 years of age when he commenced his employment with the defendant, and 32 years of age when he ceased that employment. He is now aged 38.
The plaintiff completed secondary school at St Michael’s Grammar, before going on to complete a Bachelor of Arts, majoring in French and Spanish. He then completed Honours in French before undertaking and completing a Diploma of Education.
Following the completion of his Dip Ed, the plaintiff undertook a teaching job at Wellington Secondary School. He taught there for four years between 2001 and 2004, teaching French, Studies of Society and Environment, and Year 10 Work Education. The class levels he taught were Years 7 to 10, and he had approximately 22 to 23 face-to-face teaching periods per week. The plaintiff’s workload at Wellington permitted him to play golf on some weekday afternoons.[8]
[8]T98.21; T128.1.
The plaintiff’s father died in 1994. The plaintiff’s immediate family consists of his mother and a sister two years older than him (both of whom gave evidence before me). Since the death of his father, the plaintiff has, apart from short periods, essentially lived either with his mother and/or his sister. The plaintiff is a type 1 diabetic, having been diagnosed some years before he commenced his teaching career.[9] From time to time there have been issues as to the control of the plaintiff’s diabetic condition.
[9]There was some uncertainty in the evidence as to the precise date upon which the plaintiff’s diabetic condition was diagnosed. His mother said he was 19 years of age at the time. His sister said he was 24 when he was diagnosed. While the plaintiff did not give evidence of his age when he was diagnosed, the histories in some of the medical reports which constitute Exhibits J and 9 suggest that the plaintiff was in fact diagnosed in 1997 (when he was 22 or 23).
In the second half of 2004, in the course of his employment at Wellington Secondary School, the plaintiff suffered a back injury. He attributed this back injury to extended periods of sitting and also some heavy lifting involved with the school drama programme. Later in 2004, he required three weeks off work as a result of an exacerbation brought about when he bent over at home to put something in a bin. From time to time, the plaintiff has undergone periods of chiropractic treatment in respect of this injury. Further, since 2004, the plaintiff’s back has been the subject of a number of exacerbations of varying significance.
Prior to commencing his employment with the defendant, and as time would permit it during the course of this employment (and subject to his back injury), the plaintiff actively pursued interests such as tennis, golf, swimming, drama, dancing, singing, theatre and guitar playing. He was a Grade 1 tennis player. When he was 14 years of age, he had some small roles in the Australian Ballet. He commenced performing at around the age of seven or eight.
The terms of the plaintiff’s employment with the defendant
The plaintiff was offered employment with the defendant by letter dated 10 November 2004 (“the letter of employment”). The letter of employment recorded that the plaintiff was to be employed as a French teacher who would be paid at Level 7 on the Haileybury Salary Scale. Under the heading “Total Remuneration”, the following was written:
“The total remuneration is in respect of all hours worked and is inclusive of all allowances, penalties, loadings and/or overtime which would otherwise be payable under any award or statute in respect of hours worked in excess of 38 hours in any given week.”
Under the heading “Other Duties”, the following was written:
“As part of your teaching role, you are expected to participate in a range of duties beyond classroom responsibilities. These duties may include attending up to two after-school meetings, sports training, and professional development sessions each week of the school year. You are also required to attend other meetings and professional development days at the commencement of, and during, the school year.
Some duties are performed at times other than during the school day, including weekends. You would normally be required to take up 24 weeks of Saturday Sport supervision or equivalent, as negotiated with the Principal.
The expectation concerning other duties may be discussed with the head of Castlefield.”
The letter of employment went on to provide that the plaintiff was required to have an Australian Workplace Agreement with Haileybury. The letter continued:
“Further details relating to your conditions of employment can be found in the attached Australian Workplace Agreement (AWA) which has been approved by the Office of the Employment Advocate. You are also referred to the attached Staff Welfare Arrangements document.”
At the foot of the letter, provision was made for the plaintiff to sign the letter, confirming that he had had the opportunity to consider its terms and to “accept the offer of employment on the conditions detailed in this letter and the attached AWA”.
The first four paragraphs of the AWA (which was signed by the plaintiff on 12 November 2004) provided:
“This document and your acceptance of its terms constitutes an Australian Workplace Agreement (AWA) under the Workplace Relations Act 1996 (Cth) (the Act) between yourself and Haileybury and, together with the attached signed letter of employment, sets out the terms of your contract of employment.
The AWA provides for your terms and conditions of employment and operates to the exclusion of any and all other agreements, awards, common rule orders or other industrial instruments made under the Workplace Relations Act 1996 (Cth) or the Federal Awards (Uniform System) Act 2003 (Vic) or otherwise. Such conditions will prevail except where explicitly changed by the procedures set down in the 2005 Staff Welfare Arrangements for AWA Academic Staff (2005 Staff Welfare Arrangements).
The 2005 Staff Welfare Arrangements set out in detail the policies of Haileybury in relation to employment matters. The 2005 Staff Welfare Arrangements are accessible on Haileybury’s intranet and you should read them carefully. Haileybury may change, delete or add to the 2005 Staff Welfare Arrangements from time to time as set out on the intranet. Such changes will be after consultation with the staff concerned and will be formalised through the Staff Welfare Review Committee.
If there is any inconsistency between any provision of this AWA, and the provisions of the 2005 Staff Welfare Arrangements and the letter of employment, the AWA and the letter of employment will prevail.”
The AWA then went on to provide:
“6 Responsibilities
You must comply with all reasonable and lawful directions of the Principal including, but not limited to, any directions given in accordance with the 2005 Staff Welfare Arrangements.
7 Principal Duties
Your duties are set out in the attached Classroom Teacher position description (see Annexure A).
8 Other Duties
As part of your teaching role, you are expected to participate in a range of duties beyond classroom responsibilities. These duties may include attending up to two after-school meetings, sports training, and professional development sessions each week of the school year. You are also required to attend other meetings and professional development days at the commencement of, and during, the school year.
Some duties are performed at times other than during the school day, including weekends. You would normally be required to take up to 24 weeks of Saturday Sport supervision or equivalent, as negotiated with the Principal.
These obligations are set out in further detail in Sections 3 and 4 of the 2005 Staff Welfare Arrangements.
…
27 School Policies
You are required to comply with the policies and procedures of Haileybury and to ensure that your conduct is consistent with the ethos of Haileybury.”
Annexure A of the AWA was in the following terms:
“Position Description
Classroom Teacher
The primary responsibility of the Classroom Teacher is to deliver and promote learning within the College community.
General
Teachers should ensure:
·Delivery of the curriculum caters for students with varying learning styles and ensures best practice in pedagogy
·Keeping up-to-date with modern teaching practices within their subject area
·To use appropriate learning styles
·To use a variety of assessment tasks for students to experience success and accurately assess levels of student achievement
·They attend relevant professional development sessions within their subject area.
Co-curricular responsibilities
·Teachers are expected to participate in co-curricular activities including sport, the arts and/or outdoor activities.
Administrative responsibilities
·Teachers are expected to maintain records of classroom attendance
·Report writing in accordance with School policy
·Attend staff and other administrative meetings as required
·Perform yard duty as required
·Attend parent/teacher interviews as required”
On 15 August 2005, the plaintiff signed his second AWA with the defendant. The second AWA contained the same four introductory paragraphs as the first AWA, except that the references to the 2005 Staff Welfare Arrangements document were changed so as to make the same references (and give the same effect) to a 2006 Staff Welfare Arrangements document in the second AWA as was given to the 2005 Staff Welfare Arrangements document in the first AWA. As with the first AWA, the second AWA provided that if there was any inconsistency between it and the letter of employment on the one hand and the relevant Staff Welfare Arrangements document on the other hand, then the letter of employment and the AWA would prevail.
Clauses 6, 7 and 8 of the second AWA dealt with the issues of responsibilities, principal duties and other duties in the same terms as those set out in the first AWA, except that clause 8 (dealing with other duties) imported the obligations set out in Sections 3 and 4 of the 2006 Staff Welfare Arrangements. Annexure A of the second AWA described the plaintiff’s principal duties in the same terms as Annexure A of the first AWA.
Under the heading “School Policies” (clause 27), the following was stated:
“You are required to comply with the policies and procedures of Haileybury and to ensure that your conduct is consistent with the ethos of Haileybury.
In particular, you are required to comply with the policies of Haileybury on Affirmative Action, Harassment and Unfair Discrimination in the Workplace, Occupational Health and Safety and the Occupational Rehabilitation Program (School Policies).
School Policies are set out in Operational Arrangements on Haileybury’s intranet.
Haileybury may in its discretion amend the School Policies at any time without obtaining your consent. Except as otherwise expressly provided in this AWA, the School Policies are for the benefit of Haileybury and do not give rise to contractual rights in your favour.
A failure to comply with the School Policies may result in disciplinary action being taken, including termination of employment.”
On 19 January 2007, the plaintiff signed his third AWA with the defendant. The third AWA provided that the second AWA would continue in operation until 31 December 2007. However, clauses concerning total remuneration, leave and certain formal provisions of the third AWA were provided to come into operation once the AWA was signed and lodged with the Office of the Employment Advocate. The third AWA provided:
“As your current AWA will be replicated in this AWA for the period until 31 December 2007, the provisions of the Staff Welfare Arrangements for AWA Academic Staff 2006 (‘the 2006 Staff Welfare Arrangements’) continue to apply until 31 December 2007.
However, from 1 January 2008, the provisions of the Staff Welfare Arrangements for AWA Staff 2008 (‘the 2008 Staff Welfare Arrangements’) will apply.
The 2006 Staff Welfare Arrangements and the 2008 Staff Welfare Arrangements set out in detail the policies of Haileybury in relation to employment matters, in respect of the periods covered by each of them. The Staff Welfare Arrangements documents are accessible on Haileybury’s intranet and you should read them carefully. Haileybury may change, delete or add to both the 2006 and the 2008 Staff Welfare Arrangements from time-to-time, as set out on the intranet. Such changes will be after consultation with the staff concerned and will be formalised through the Staff Welfare Policy Review Committee.
Neither the 2006 Staff Welfare Arrangements nor the 2008 Staff Welfare Arrangements constitute conditions of your letter of employment or terms of this AWA but each provides a basis for instructions to you by Haileybury as your employer in accordance with your contract of employment, subject to your letter of offer and this AWA.
If there is any inconsistency between any provision of this AWA and the 2006 Staff Welfare Arrangements or the 2008 Staff Welfare Arrangements (as applicable at any time) and the letter of offer of employment, the AWA and the letter of offer will prevail.”
While the letter of employment referred to an attached Staff Welfare Arrangements document and attached what was said to be the 2005 Staff Welfare Arrangements document, no Staff Welfare Arrangements document dated 2005 was discovered by the defendant or tendered at trial. Instead, the plaintiff tendered an undated document headed “Staff Welfare”[10] and the 2006 Staff Welfare Arrangements document.[11] While the 2006 Staff Welfare Arrangements document is referred to in the second AWA and the third AWA, the undated Staff Welfare document is not referred to in any of the AWAs entered into between the parties.
[10]Part of Exhibit E (PCB 327-360). It is clear that the undated Staff Welfare document is not the 2005 Staff Welfare Arrangements document because clause 8 of the first AWA refers to numbered sections of the 2005 Staff Welfare Arrangements document, whereas the undated Staff Welfare document contains no such numbered sections.
[11]Part of Exhibit E (PCB 449-514).
The plaintiff submits that the undated Staff Welfare document is either the 2003 or 2004 version of the Staff Welfare Arrangements document. There are many similarities between the undated Staff Welfare document and the 2006 Staff Welfare Arrangements document. On p 12 of the undated Staff Welfare document, there is a reference in the past tense to the Haileybury budget for 2001 and a reference to an already published 2002 professional development programme. From these references, and from the terms of the Staff Welfare document, it appears that the Staff Welfare document is a version of the Staff Welfare Arrangements document compiled in or about 2003.
It is necessary to describe the undated Staff Welfare document and the 2006 Staff Welfare Arrangements document and to refer to their terms because the plaintiff contends that it is from these documents (and from the 2005 Staff Welfare Arrangements document) that one obtains the terms of the plaintiff’s contract with the defendant concerning maximum numbers of face-to-face teaching periods (either 28 periods per week or 25 periods per week with any deductions or reductions provided for in those documents).
The undated Staff Welfare document commences with a section headed “School Outcomes” as follows:
“School Outcomes
This policy relates to the following aspects of outcomes for the School:
-staff development to ensure optimal performance by students in curriculum and co-curriculum within the School and in moving beyond the School;
-familiarity with best practice in learning and teaching, and benchmarking and quality assurance;
-effective communications with other staff, students, the administration, parents and the broader community;
-the staff of the School to enjoy high professional standing, working in a satisfying environment with remuneration, benefits and welfare conditions measuring strongly against appropriate benchmarks.
As far as possible the staffing arrangements apply to all staff but where necessary items pertaining only to teaching staff and again only to administrative staff are outlined separately.
Section A of this document relates to staffing conditions for teaching staff while section B relates to staffing conditions for administrative, grounds and maintenance staff.
Base conditions for assistant staff are as set out in the Independent Schools Award 1998. Assistant staff at Haileybury have always been treated the same as academic staff and this practice will continue. One exception is fee concessions which will continue to be unavailable to assistant staff.
A Staff Welfare Committee, with elected staff representatives, shall advise management on all matters relating to staff welfare.”
Under the headings “Time and Working Conditions” and “Workloads”, the following appears:
“Time and Working Conditions
The extended non-teaching period and the level of remuneration reflect the very substantial commitment required by staff during the teaching year, including commitments outside of normal class hours, on evenings and at weekends.
Notwithstanding the acknowledgment of the commitment required of staff, it is incumbent upon management to provide adequate levels of staffing in all parts of the School, to take cognisance of reasonable expectations by staff to commitments outside of work and the need for a viable home life, to provide adequate conditions and facilities for staff to be able to complete their functions and duties and to treat staff equitably with respect to the distribution of workloads and duties.
In general, working requirements and conditions should compare favourably with those in other APS schools and it is incumbent upon management to maintain these benchmarks.
Workloads
The workload arrangements require teachers to show a high degree of flexibility during the teaching year, but also aim at reasonable overall expectations on staff, conditions favourable when compared with similar schools and equity in the treatment of members of staff.
Where staff undertake Positions of Responsibility, a time allowance is normally made to reflect time required for the task. A responsibility allowance reflects level responsibility on a scale of eight bands.
While there is normally a balance of allowance and time, in circumstances where the level of responsibility is not significantly different from that of a classroom teacher, then either an allowance or time could be provided. This is particularly the case for instances of local arrangements for coordination.
Because of historical and structural factors, workloads and staffing arrangements are dealt with at three levels:
Early Learning Centres
…
Junior and Middle Schools and the Pre-Senior Program[12]
[12]The plaintiff gave evidence (and it is now common ground) that Middle School refers to Years 5 to 8 and Pre-Senior refers to Year 9.
Teaching duties: 80-85% of class time for students (28 out of 35 periods for Middle School and Pre-Senior and 30 out of 35 periods for Junior School) including periods allocated for pastoral care, plus all out of class work that teaching entails (preparation, marking, reporting, excursions, extra assistance, discipline, etc).
Responsibility time-allowances:
Deputy Heads – 5-6 ppw
Area coordination (where this is in place at a local precinct level) – 2-3ppw
Major activity coordination (eg sport) – up to 2 ppwSpecial ongoing duties (where this is in place at a local precinct level) (eg extra roster, emergency teaching) – up to 2 ppw.
Staff involved in the off-precinct program for Pre-Senior students will have a nightly allowance, and some time-off-in-lieu.
Senior School
…
Whole School
Teaching responsibilities involve:
·Preparation, classes, marking and assessment, reporting (formal, informal, P/T interviews), extra tutorials as necessary, curriculum development, maintenance of discipline, class administration (including attendance rolls) liaison with family and pastoral care workers.
Additional staff responsibilities include:
·Pastoral care involvement (eg Home Room, Tutor Group, House responsibilities)
·As far as possible co-curricular responsibilities will be shared equally among staff: Such responsibilities include Sport (training and Saturday competition), Camps and outdoor experience program (including Pre-Senior Options, School camps), Clubs, Assemblies, Cultural Productions (with rehearsals)
·Student supervision (yard, bus stop, ‘extras’, exam, detentions, library, etc)
·Special Events/Open Day/Inspection Tours/public relations events
·Participation in Staff meetings (whole school, precinct, departmental, etc)
·Professional Development
·Administrative duties (eg prizes, speech-night, noticeboards, setting up for events, photographs, competitions, common-room administration etc)
·Full involvement in the life of the School.
… At the Junior and Middle Schools, as far as possible, staff will be guaranteed five 50-minute Assessment and Preparation Time sessions.
Normally, staff will be required to supervise a maximum of two extras per week.
Staff who order individual detentions are responsible for detention supervision.
…
Whole School/Cross Precinct Responsibilities
…
Further information
Allowances for Positions of Responsibility (Level 3) Allowances
Class Sizes (Level 3) Class Sizes
Workload Guidelines in Teaching Time (Level 3) InsideWorkload Guidelines Outside Teaching Times (Level 3) Outside“
Following this material, the undated Staff Welfare document goes on to deal with a number of other relevant matters under headings such as “Professional Relationships”, “Termination of Appointment”, “Leave”, “Affirmative Action”, “Occupational Health and Safety”, “Sexual Harassment” and “Haileybury Privacy Policy” and the like.
The 2006 Staff Welfare Arrangements is a significantly more detailed document than the undated Staff Welfare document. The 2006 document (with its appendices) runs to some 66 pages. It commences with a section headed “Philosophy and Organisation”, in which it is stated:
“Haileybury’s philosophy is for a harmonious professional workforce; skilled support, administrative and general staff; and sensitive and proficient management. It seeks a total team approach to the operation of the enterprise.
As a result of the tradition of the staff not being confrontational, highly unionised, or adversarial, management undertakes to seek high quality staff welfare and human resource management arrangements. This includes keeping all staff informed of relevant matters, benchmarking remuneration and conditions against similar professional enterprises, similar schools and other sectors in education. Where appropriate, it takes account of any relevant award conditions and procedures.”
In the section of the 2006 document dealing with terms of employment contracts, the following is provided:
“The term of a position depends on the nature of the position. The letter of employment/appointment details whether it is a continuing employment subject to continuous review, or a position of limited tenure with a fixed term.”
The 2006 Staff Welfare Arrangements document goes on to deal with allowances, meeting responsibilities, leave, dispute resolution, occupational health and safety and other relevant topics before dealing with workloads. In the section that deals with workloads, the following appears:
“The workload arrangements require teachers to show a high degree of flexibility during the teaching year, but also aim at reasonable overall expectations on staff, favourable conditions when compared with similar schools and equity in the treatment of staff.
The workload arrangements are in terms of a five-day week, each teaching day consisting of the equivalent of seven 50-minute periods. The teaching day shall not commence before 8.00 am and shall normally not finish later than 4.00 pm, but the total time from commencement of school teaching day to end of school teaching day (ie, student contact time) shall not exceed 7.5 hours. There will be a lunch break of not less than 45 minutes and a morning recess of not less than 15 minutes.
Notwithstanding these general requirements and reflecting the high degree of flexibility expected in arranging a high quality and innovative teaching program, the following should be noted with respect to teaching arrangements:
…
·Staff who order individual detentions to students are responsible for that detention supervision except where the Head of a precinct puts a limited and audited alternative arrangement in place
·A teacher who is required to, or agrees to, take significant additional loading duties should have agreed additional remuneration or time off in lieu.
…
It should be noted that workloads specified for teaching in Junior, Middle, Pre-Senior and Senior School will be lowered by one period per week in 2007.
…
Teachers in the Middle School
As many Middle School teachers teach, interact with and write reports for a number of class groups, Middle School teachers in general teach one period less than Junior School teachers. This also takes account of sport supervision expectations.
Years 7 and 8 teachers
·Take 28 periods per week
·Assist with some tours
·Write reports for students in their class
·Take one season of Saturday sport.
…
3.2 Positions of Responsibility and Time & Financial Allowances
In addition to the normal teacher workload detailed above, teachers with positions of responsibility may be required to attend other regular meetings either before school, after school or at lunchtimes. There are eight levels of responsibility and the time and financial allowances vary according to the level. The time allowance normally reflects time required for the task, while the financial allowance reflects level of responsibility.
While there is normally a balance of allowance and time, in circumstances where the level of responsibility is not significantly different from that of a classroom teacher, then either a time or financial allowance (but not both) could be provided. This is particularly the case for instances of local arrangements for coordination.
When a person holds two positions, the time allowance is normally the sum of the two except where this has been settled by negotiation. However, the financial allowance will normally be the ‘highest plus 50% of the other’, but may also be determined by negotiation. An exception is where the second position is seen to be incorporated within ‘or highly related to’ the first, as with Head of Department and Leading Teacher; or Associate Dean (Arts) with Director of an arts department.
Some Level positions have a range of allowances as some positions are designed to be taken conjointly with another position or vary with the size of precinct or have more responsibilities. Some also may be pro-rata for part-time staff.
Time Allowances
Junior and Middle Schools and the Pre-Senior Program
·Deputy Heads – 5 ppw
·Area coordination (where this is in place at a local precinct level) – 2 ppw
·Major activity coordination (eg, sport) – up to 2 ppw
·Special ongoing duties (where this is in place at a local precinct level; eg, extra roster or emergency teaching) – up to 2 ppw
Staff involved in the off-precinct program or physical education program for Pre-Senior students have a special system of allowances as explained below (see 4.4.2 below).
…”
In the section dealing with communication as part of professional practice, the 2006 Staff Welfare Arrangements document provides:
“All communication within the School is expected to conform to the following key values:
(a)Consultative and collaborative – Staff are always informed about, and wherever possible, participate in decisions which affect their working lives
(b)Inclusive – Information is be (sic) shared as widely as possible
(c)Characterised by trust – staff are free to request information, ask questions, seek assistance or ask for the reasoning behind decisions, or constructively challenge the status quo
(d)Have a performance orientation – a key object of communication is the performance of the various parts of the School
(e)Recognise the whole person – economic, political, social, physical aesthetic and spiritual. Staff are encouraged to maintain good task-process balance. Communication facilitates human enrichment and enjoyment
(f)Aid innovation – new ideas for improving the life and work of the School are actively sought
(g)Respectful of the dignity of persons”
It is from the undated Staff Welfare document (and by inference, said to be from the 2005 Staff Welfare Arrangements document) and the 2006 Staff Welfare Arrangements document that the plaintiff asserts that the defendant was contractually bound to limit his teaching load to 28 50 minute periods in 2005 and 2006 (and 27 periods in 2007) less appropriate allowances in respect of his responsibilities as a home room teacher (10 minutes at the start and end of each teaching day) and Middle School Housemaster. However, the plaintiff also tendered a document discovered by the defendant headed “Duty Requirements of Staff” and dated January 2003.[13] This document is a table which, on its terms, purports to set out “a notional ‘full load’ for staff working a normal day of 8.30am to 4.00pm”. According to this document, the notional full load for teachers in Years 5 to 9 included 25 periods of face-to-face teaching. The document also purported to set out the amount of time and requirements for assemblies, home room, administration and planning time, yard supervision, sport, professional development and other meetings, non-quantifiable professional duties normally carried out outside timetabled hours, Saturday sport and five day camps. This document formed one of the alternative bases upon which the plaintiff put his case that the defendant was contractually bound to limit his face-to-face teaching to 25 periods per week, less the allowances and reductions provided for in the Staff Welfare Arrangements documents. I should say for the sake of completeness that this document appears to be the January 2003 version of Appendix 3 of the 2006 Staff Welfare Arrangements document. Curiously, Appendix 3 provides for a full load of 25 periods of face-to-face teaching, whereas (as I have said) the body of the document to which it is appended refers to 28 periods. The plaintiff also based his alternative case on the terms of Appendix 3.
[13]Exhibit G.
To the extent that 25 periods of face-to-face teaching or 28 periods of face-to-face teaching might be contractual maximums, these were not the only figures disclosed in the documents tendered. During the course of the plaintiff’s cross-examination, the defendant tendered a document headed “Haileybury – Information for New Staff”.[14] There are many similarities between this document and the undated Staff Welfare document. Indeed, a significant number of passages in them are identical. On p 6 of this document, under the heading “Junior and Middle Schools and the Pre-Senior Program”, the following appears:
“Teaching duties: 85% of class time for students (30 out of 35 periods) including periods allocated for pastoral care, plus all out of class work that teaching entails (preparation, marking, reporting, excursions, extra assistance, discipline, et cetera).” (Emphasis mine)
[14]Exhibit 3.
In cross-examination, the plaintiff agreed that it was likely that he would have read this section.[15] He also agreed that when entering into his obligations with the defendant, he knew that there was a significantly greater workload than he had experienced at his previous school (Wellington Secondary).[16]
[15]T297.15 - .20.
[16]T297.21 - .24.
The plaintiff’s description of his work at Haileybury
The plaintiff commenced teaching at Haileybury at the start of the 2005 school year. He taught throughout the 2005 and 2006 school years, and then in the 2007 school year until ceasing on 1 May 2007. Primarily, the plaintiff taught French to students in Years 5 to 9. However, he also taught some Year 7 health classes. Additionally, the plaintiff was a designated home room teacher in each year that he taught at Haileybury.
The plaintiff gave evidence that he was involved in curriculum planning in 2007. He thought he was also doing it in 2006, and it is possible that he was similarly involved in 2005.[17] There was a curriculum committee that ensured that each French class at each level at each campus of the defendant was being taught the same material on the same date, and that exams at each campus were identical. The plaintiff described the difficulty and increased workload placed on teachers to ensure that classes across campuses were kept in step.
[17]T107.13 - .18.
At the Brighton Campus, there were two French teachers in the plaintiff’s first year of employment. Later, there was a third – but this teacher was only a part-time French teacher. The plaintiff described him as “primarily an English teacher”.
The plaintiff described how Year 7 students included students who had previously studied French and students who were studying French for the first time. He said that because there were these students of differing abilities, there were “incidents where you had a mixed class”.[18] He said he thought he had about one of these in each of 2005 and 2006, but none of them in 2007.[19] Mixed classes involved more preparation outside class (effectively preparing different standard lessons for the same class), and greater difficulty in class trying to engage and supervise the students doing different things in what the plaintiff described as a very hands-on subject.
[18]T111.23 - .24.
[19]T143.19 - .26. But cf T111.25 - .26.
During the course of his evidence (and perhaps more so in cross-examination), the plaintiff described difficulties associated with teaching Year 8 boys. Year 8 was the last year at Haileybury for which a language was compulsory. The plaintiff said that, as a result, many of the boys did not want to be there and were disengaged. He described the majority of the Year 8 class as badly behaved students, students with learning disabilities, or students who were new to the school or who had dropped Japanese. He said these students were notorious for creating discipline problems.[20] He said this was a source of stress for him in his teaching.[21] However, later in cross-examination, the plaintiff said that in 2006 he had a “much better Year 8 boys class”.[22]
[20]T270.15 - .28.
[21]T271.22 - .25.
[22]T275.17 - .18.
The plaintiff described his homeroom duties as requiring him to supervise anything from 18 to 22 students of the same year level for ten minutes at the start of the day and ten minutes at the end of the day. These duties involved conveying information, checking diaries, sorting out excursion forms and notices, conveying information concerning house or inter-school sports, checking uniforms and dealing with any “pastoral care issue” that arose between himself and individual students.[23] The plaintiff said that he found that most days he would have to sort out some academic or welfare issue that a student was having within the school.
[23]T112 – 113.
The plaintiff described his report writing obligations at Haileybury. He said there were interim reports in Terms 1 and 3, and main reports in Terms 2 and 4. He said the Term 1 and 3 reports were smaller reports than the Terms 2 and 4 reports. He said as a home room teacher, he had to write a full comment on each of his students, and that this involved him writing his overall impression of that student’s conduct and contribution and achievements at the school.
In 2006, the plaintiff became a house master. He was the head of a house (Russell) for the Middle School at the Brighton Campus. It was common ground between the parties that the plaintiff accepted a payment of an additional $1,000 for his duties as a house master.[24] The plaintiff said being a house master involved running meetings before house sporting events, being in charge of organising and coordinating house captains, making sure that your house was well prepared with the equipment it needed, and making sure that you had the relevant students involved or enrolled in all the events of a particular sporting day.
[24]T114.30 – T115.3.
Additionally, houses would participate in music and drama competitions. The plaintiff said it was his responsibility to make sure his house’s “big group presentation was as high quality as it could be”. He also said that “the small music and drama acts required lots of rehearsal to make sure they were prepared”. He said a lot of hours were put into out of class time for rehearsals. Additionally, persuading and motivating students to participate was time consuming.
The plaintiff said he lived only a short distance from the school. He was asked and answered the following questions about his hours:[25]
[25]T119.18 - .28.
“Now if I come to some very general questions, you lived, you said, only a short distance from the school; what time in 2005 would you arrive at school?---About quarter to eight, ten to eight.
…
In 2006, what time would you arrive at school?---Around 7.40.
And in 2007?---Between 7.30 and 7.40.
In the first year, what time would you ordinarily leave school?---About 5.00pm.
And in the second year?---Between 5.00 and 5.30.
And by the third year?---5.30 and 6.00.”[26]
[26]See also T194.15 - .20.
The plaintiff was required to supervise Saturday morning sport for 24 of the 38 week school year. He said this involved arriving at the relevant sporting venue as early as 8.00am on a Saturday (although possibly arriving as late as 11.00 or 12.00 sometimes), and leaving as early as 10.00am (or as late as 2.00 or 3.00pm).[27] Although, a little later in his evidence when he was describing weekend work, the plaintiff said that there was Saturday morning sport, then Saturday afternoon and Sunday.[28] The plaintiff said that following Saturday sport, he did whatever work he had to get done.[29] He said this involved three or four hours on a Saturday. He also said that in his first year, Sundays were “pretty well work-free”. He then described an increased weekend workload when report writing (particularly writing reports in the last month of Terms 2 and 4) and that this could stretch weekend work from a range of three to six hours to a range of five to fifteen hours. He said, “[t]he closer to the end of the reports, you know, you are spending the whole weekend”.[30]
[27]T120.9 - .12.
[28]T182.19 - .23.
[29]T129.12.
[30]T129 – 130.
As to work at home on week nights, the plaintiff said that he would get home and fall asleep on the couch, “so I did very little at night time once I got home from Haileybury”.[31] In evidence-in-chief, he was asked and answered the following questions:[32]
“I want to deal with 2007 as a block. What was the pattern, if there was a pattern, for your work at home? First, on school days; what was the pattern, if anything, of your work at home in 2007?---The pattern I utilised, in terms of work, was a system I had developed throughout 2006 which was an aim to stay back at work to complete all that possibly could be completed for the following day. I aimed to get that done at school so I didn’t have to take it home on weeknights.
In 2007 what pattern, if any, did you have of doing work weeknights?---I continued that pattern of staying back at work until I had got through my priority of tasks that had to be done in order to be prepared for the following day.
Did that mean that you rarely, Monday to Friday, did any work at home in 2007?---Yes.”
[31]T127.29 - .31.
[32]T195.12 - .28.
The plaintiff gave evidence of being required to go on one Year 7 camp for five days each year. He said this involved extra work. He said he had to leave work for every period that he was away for and that “leaving work for other teachers required a lot more time and detail because you had to assume that the teacher – whichever teacher was taking your class, you can’t presume they speak French so it has to be a very structured and guided task that you leave behind”.[33]
[33]T130.
The plaintiff then gave further evidence about the amount of material required to be covered in French classes. He said that it was more material than he had previously been used to. He estimated that there was 50% more work to cover at Haileybury than at his previous school.[34] He also said that he found himself falling behind the school-wide program which had been set.[35]
[34]T134.25.
[35]T133.9 - .12.
As to class hours, the plaintiff said that home room was from 8.30 to 8.40am at the start of the day and then again 3.20 to 3.40pm at the end of the day. The first class started at 8.40am. The last class finished at 3.20pm, and there was a 20 minute recess in the morning and a 40 minute lunch break.[36] There was an assembly period on Monday morning and ad hoc assemblies on occasions. House meetings could be organised. Sometimes they were in the first period on Monday instead of assembly.[37]
[36]T136.
[37]T136 – 137.
In his evidence-in-chief, the plaintiff returned again to the topic of the size of the curriculum he was required to teach.[38] The plaintiff described what he said was a problem in completing the curriculum. He said this problem required teachers to prioritise topics so as to ensure that relevant material was covered for upcoming exams. The issue was raised and discussed at meetings of LOTE teachers in 2006 and 2007. In 2007, extra periods were added to classes.[39] However, the size of the curriculum gave the plaintiff “the feeling of having to rush through the content” without adequate time to permit students to properly develop their skills.
[38]T144. While the plaintiff is not to be criticised for the way in which his evidence-in-chief was elicited, I should say that the somewhat random way in which topics were raised and returned to in evidence-in-chief did not assist the easy comprehension of the plaintiff’s evidence.
[39]T145 – 147.
Additionally, so far as class work was concerned, the plaintiff described occasions when students, who were studying both Japanese and French, would be absent from the French class to study Japanese. He said on these occasions, you could not go on with new work – and so it became “a period of revision and catch-up and extra assistance”. He also said that students in these classes “saw it not as a serious class”.[40]
[40]T153.
The plaintiff described disciplining the students as “a process of steps in dealing with the behaviour of a student”. He said it went from ignoring their behaviour, to passively addressing them, then to directly addressing them, giving them warnings, moving them to another seat, putting names on the board, recording notes in diaries, and finally detentions. He said that detentions were controlled and organised primarily by the individual teacher. Giving a detention required the individual teacher to be with the student (more work for, or at least more time consumed by, that teacher).
The plaintiff was asked about the number of hours of face-to-face teaching. While he read his first AWA at the time he was employed, he said he did not have access to Staff Welfare policy documents. He said it was not until some time after he commenced his employment that he first learned that there were Staff Welfare policy documents that referred to face-to-face teaching loads.[41]
[41]T169.
He was then asked about whether he made complaints about the number of classes he had. He said he first complained in early 2006 to another teacher, Angela McBride. He said the substance of his complaint was that the period allocation was too high. At this point in his evidence,[42] the plaintiff gave evidence that in 2006 there was a one to three period increase on 2005 numbers (which he had previously said had been either 28, 29 or 30 periods). However, as was later clarified, the plaintiff’s teaching load in 2005 was 28, which was increased to 29 in 2006. While he did not make any express complaint about stress, the plaintiff described “gradually increasing stress throughout 2005” which went into 2006 and following.[43] He said he became less patient and not as good humoured with students. He said he became quicker to get angry with students. He was asked about the defendant’s welfare documents that indicated that the defendant had a system of offering counselling to staff that were in trouble.[44] He was asked and answered the following questions:[45]
“What awareness, if any, did you have of this facility at the school in 2005?
---The only thing I recall is speaking to a fellow staff member. I can’t recall specific procedures or policies in 2005.Do you know when you became aware that there was offered by the employer those sorts of services to staff that were in trouble?---I was aware in bits and pieces that you get at staff meetings of what possibly you could do. The staff meeting really focused more on students’ general welfare and academic and staff requirements. In terms of staff wellbeing, I can’t think of anything really cohesive or clear. I can’t recall any sort of cohesive or clear procedure, especially in 2005, I can’t.”
[42]T171.
[43]T172.
[44]T174.
[45]T174.15 - .28.
The plaintiff was asked whether, after his first complaint, he made any other complaints about the number of classes he was expected to teach. He said:[46]
“Not in terms of how many periods I was teaching.”
[46]T175.17 - .21.
The plaintiff was asked about whether he made other complaints concerning workloads, and said that he raised concerns in relation to the amount of content that had to be covered in too short a time. These concerns were raised at LOTE meetings. People in attendance included Marion Branchflower (who he described as the Head of LOTE at Brighton) and Diane Furusho, who was the Head of Languages at Haileybury (and based at the Keysborough Campus).
On 13 September 2006, the plaintiff sent an email to Anna Hanusiak (employed in the position of Deputy Head of Languages), Alina Wirubov (a language teacher), Diane Furusho (Head of Languages), Maude Fugier (Head of French), Mihaela Popa and Nathalie Athong (one of two French teachers in Middle School and Deputy Head of French at Brighton). The subject of the email was “Re: Year 9 exams – general LOTE matter”. The email provided:
“Hi,
I think it’s easier to leave it out of 100 and give them 1 mark extra.
My particular year 9 girls class were beginners in year 8 and have found the jump to year 9 hard and their exam results have reflected this. They were doing the same exam as girls who had commenced French before year 8. Is it too bad or can the girls who only began French in year 8 be streamed separately.
Also tearing through Touche 5/6 to get all units done, we were actually starting unit 6 when it was agreed only units 1-4 would be on the exam, but a solid enough grounding hadn’t been established in the earlier units.
Most students finished in half the allotted time. We need longer exams for all year levels. Add more exercises which start off more easily and build up to a 2nd, 3rd or 4th more challenging section on a particular topic or area of grammar. It’s torture for LOTE exam supervisors with that much time to kill.
We’re going to have to sort something out for what books and units each year level is studying next year. With only the first units of books being taught, we can’t skip 3 or so units, jump to the next book for next year and expect kids to handle the work.
I’m tired and angry but something has to be done or we’ll be beating our heads against the wall next year.
Nick Taylor.”
On 21 March 2007, the plaintiff sent another email, this time written both on his own behalf and on behalf of Nathalie Athong. That email provided:
“Hello All,
On behalf of Nathalie Athong and myself Nick Taylor, we are feeling overwhelmed with the to do lists in regard to everything at Haileybury and are not keeping up with the requirements of exams, planners etc. Last weekend Nathalie and I worked the entire weekend. Our teaching load does not allow us to get anything done during the day apart from eat, emails and gen admin. This is our allotment.
Nick Taylor Nathalie Athong
-30 periods -31 periods
Homeroom Teacher -Deputy Head of LOTE (C)
Sat Sport - Sat Sport
-Head of House – (daily rehearsals -1 hour travel home
for either drama, small music act
and large music act; taking up
lunches and after school at times)
-3 yard duties
We are often at school till 6pm and beyond and then with Sat sport, correction and preparation on the weekend, barely get a break. We just want people to understand why the last minute deadlines are so hard to reach.
regards, Nick Taylor and Nathalie Athong.”
The plaintiff’s email of 21 March 2007 produced a reply from Diane Furusho. The reply contained the following:
“I have read your email and certainly do empathise with you regarding all your requirements that you must meet at Haileybury. This is a very busy school and I do know how hard you are working and appreciate your effort especially in LOTE. Regarding your loads and requirements at Castlefield [Brighton] this is precinct based and I cannot comment on this except to say that if you feel this is more than stipulated in your AWA you should speak to your head of precinct.”
The plaintiff’s email of 21 March 2007 and Diane Furusho’s reply formed part of a chain of emails.[47] In this chain of emails there was then an email to Diane Furusho from Joan Gill (Head of Castlefield/Brighton), a further email from Diane Furusho to Joan Gill and a subsequent email on 25 March 2007 from Nathalie Athong to Diane Furusho, containing the following:
[47]All of which constituted Exhibit D.
“Dear Diane,
Thank you very much for your response to Nick’s email. …
I apologise for all inconveniences caused to you by Nick’s email. He and I felt under pressure those last three weeks with all the duties that we had to carry out in a relatively short period of time. We are fully aware that we have to assume all our responsibilities especially that we are paid for it.
I indeed asked Nick to help me write the grammar section for one of the two exam papers that I had to write.
…
In my opinion, Nick wanted you to be aware of our workload, for you and Maude to understand our situation, if it happens in the future, that we cannot meet deadlines. He thought maybe, you could be of any help. It’s good that you make it clear that all the decisions are not made by the languages department and some issues have to be discussed with other persons. I thank you for that.
…
Thank you again for your cooperation,
Regards
Nathalie Athong.”
The plaintiff gave evidence about becoming increasingly stressed and under pressure by reason of his workload, the matters to which I have referred and some disciplinary issues (including in respect of one particular student, X).[48] Additionally, the plaintiff’s back condition was a stressor. Indeed, in November 2006, the plaintiff’s back condition resulted in him taking a week off from school.[49]
[48]Indeed, on one occasion (the date of which is not known), the plaintiff shouted out (with an expletive) that he was “piss weak” (T207 and T244.28).
[49]T250.24 - .26; T322.6 - .7.
While the plaintiff’s mother and sister noticed changes in the plaintiff’s mood over the time of his employment with the defendant, at no point in the course of his employment before the day on which he last worked did the plaintiff seek counselling or medical treatment. Indeed, the plaintiff did not consider himself to be suffering from any medical or medical-like condition or problem.
The plaintiff was asked about counselling in evidence-in-chief. He was asked and answered the following questions:[50]
“Did you read some material that indicated that there was a system of welfare where there was a nominated person to whom staff could go if they were in trouble emotionally or for some other reason? Have you read that?---I don’t remember.
You don’t recall a name of somebody that was nominated as the point of contact, or from a statement?---Kay Longden, the head of part of the staff association.
Were you conscious of that whilst were you teaching, that she was somebody who was put forward by the school as a source of advice and counselling should you need it?---I think she was - I can’t remember exactly why I recall her being someone to approach. Perhaps towards the latter part of 2006. She was a name of someone you could approach but I don’t know how concrete her particular position or role was.
Did you go to anybody at the school seeking counselling in 2006 or 2007, or in 2005?---I didn’t specifically request, like, a counselling appointment.
Did you, before you left the school, have a view that it would be of assistance to you if you could make such an approach?---It just didn’t come to my mind to - that I was to access something like therapy.”
[50]T226.3 - .25.
In cross-examination, the plaintiff agreed that he gave the following history to his treating psychologist, Reinhild Robertson:[51]
“In general, students are much more disrespectful these days, but at Haileybury, many boys and a few girls were very defiant, disruptive, disrespectful and abusive.
In classes and on yard duty, boys would often unite as a mob to undermine, intimidate, bully and ruin a class or rebel against specific yard duty guidelines I tried so hard to reinforce.
In 2007 I had to deal with a year 8 boy whose parents divorced late 2006 and who was fine in year 7. He became very difficult not only for me but all his other teachers. He and 2 other boys made my year 8 class increasingly unworkable. Totally defiant, disruptive, abusive and oblivious to the impact that had on all. The Head of Middle School ran a mediation with me and the boy, then me and the parents, he had a suspension, improved for a class, but at the start of term 2, things just got worse. The Head of Middle School, in response to discipline issues for all teachers, ran a session on how to manage a class from start to finish.”
[51]T276.11 – T277.6.
In agreeing that this history was accurate, the plaintiff said that the session on how to manage a class from start to finish was on his last day at Haileybury (1 May 2007).
Cross-examined about his workload and the number of face-to-face teaching periods, the plaintiff variously said:
(a)30 face-to-face classes were something he was prepared to accept;[52]
(b)there were benefits associated with moving from his previous school to Haileybury (shorter travel time, increased salary and the opportunity to earn bonuses which were not available at his previous school);[53] and
(c)when entering into his obligations with Haileybury, he knew that a significantly greater workload would be imposed upon him compared to his previous school.[54]
[52]T239.27 - .28.
[53]T280 – 281.
[54]T296 – 297, and in particular T297.21 - .24.
In further evidence, the plaintiff was asked and answered the following question:[55]
“If you perceived there was some unfair treatment and people were given unfair and different workloads, there wouldn’t have been any reason why you couldn’t have gone and complained about it, would there?---I guess you had the right to complain.”
[55]T341.15 - .19.
During the course of being asked questions about whether the plaintiff was compelled to take on all additional duties that might have been offered to him in the course of his employment,[56] the plaintiff said that as a result of being in a different state of mind at the end of 2006 from the beginning of 2006, he declined the position of tennis coordinator which had been assigned to him. The plaintiff said that he told the sports coordinator that he could not manage the position of tennis coordinator on top of his workload, “[i]t was just too much”.
[56]T342.
The defendant’s witnesses
The defendant called six witnesses who were employed by it, either at the defendant’s Brighton Campus or Keysborough Campus, during the time of the plaintiff’s employment. The defendant’s witnesses painted a slightly different picture of the plaintiff’s employment than that described by the plaintiff.
Sean Allcock was the Head of Brighton Middle School (boys) during the time of the plaintiff’s employment. Mr Allcock gave evidence about the plaintiff’s teaching abilities, which evidence was not entirely complimentary. He described the plaintiff as disorganised at times; very text book driven; and, at times, one who delivered his material in a manner that was ambiguous and unclear.[57] I should say immediately that Mr Allcock’s view of the plaintiff’s teaching abilities was not one shared by the other defendant’s witnesses. While I accept that Mr Allcock genuinely holds the views he expressed, a proper analysis of all of the evidence suggests that in fact the plaintiff was a well educated, intelligent, conscientious and professional teacher.
[57]T546-7.
Mr Allcock gave evidence that the plaintiff never came to him to complain about his workload.[58] Mr Allcock was asked about a workload of up to 30 face-to-face classes a week. He said that that was not an unusually heavy workload at Haileybury.[59]
[58]T557.5.
[59]T557.10.
Mr Allcock described the Saturday morning sport requirement as usually taking 1½ to 2 hours on a Saturday morning for about 24 Saturdays. He said this might involve attending the school or an off-campus venue.[60]
[60]T557.
Mr Allcock said that staying back after school until 6.00pm was not unusual for teachers.[61] Asked whether 30 face-to-face classes and homeroom duties of about ten minutes at the start of the day and ten minutes at the end of the day was a workload that other teachers at the school also had, Mr Allcock said that it was.[62] Mr Allcock was asked about the duties required of a Head of House. He said that probably once a term there was a major activity and that there were minor ones scattered throughout the year. He said he thought there were in total “maybe six activities”. He said that the hours involved in taking on this responsibility were minimal. He said that house activities were meant to be student-led.[63]
[61]T558.15.
[62]T558-9.
[63]T559.
Mr Allcock said that the school employed a Dean of Staff, Kay Longden. If a teacher had any personal problems or any problems involving health, she would become involved. Mr Allcock said that the school had a counsellor on staff. While the counsellor was predominantly involved with pastoral care of students, there was assistance for staff as well.[64] Mr Allcock said he never heard that the plaintiff had any health issues at the school, nor that the plaintiff was unhappy with the number of hours he had to put into his work. Mr Allcock said that if he had heard that the plaintiff was stressed because he was teaching too many classes, then they would have had a look at his load; alternatively, if he had heard the plaintiff was working too many hours after work, then they would have had a look at how he was managing his time.[65]
[64]T561.
[65]T562.
Mr Allcock was asked about Year 9 classes. These classes imposed a lower number of hours on teachers because for two weeks each term, Year 9 students were doing “options”, which meant that they were not attending classes. Mr Allcock said that the plaintiff was not given other work to do during these periods.[66] Additionally, in fourth term, Year 9 students commenced the Year 10 syllabus. Again, this meant that the workload of the Year 9 teachers was reduced. Little, if any, Year 9 teaching was performed during fourth term. However, the plaintiff gave evidence that on the occasions when he was not required to teach his Year 9 students, he was given extra classes filling in for an absent teacher.[67]
[66]T562.
[67]T149.10 - .15.
Diane Furusho was the Head of Languages at Haileybury, based at the Keysborough Campus, during the time of the plaintiff’s employment. Her responsibilities included overseeing the Language Department at all three campuses from Grade 3 up to Year 12. She also oversaw the curriculum that was implemented and staffing matters. Ms Furusho gave evidence that from time to time she attended meetings with the LOTE teachers. At those meetings, there would normally be discussion concerning curriculum matters, the allocation of tasks and how matters were progressing.
Ms Furusho was asked whether the plaintiff ever complained to her that he was not coping with his workload. She said that he did not.[68] Asked about the plaintiff’s workload during 2005, 2006 and 2007, Ms Furusho said that the plaintiff did not have LOTE teaching duties greater than any other LOTE teacher.[69] Asked about the work involved around the time of exams and report writing (particularly Term 2 and Term 4 reports), Ms Furusho said:[70]
“We are all busy at that time. We are school teachers, it’s part and parcel. … Everyone would say they were busy and if you didn’t say you were busy someone would be, ‘what’s wrong with you?’ Busy is a busy time.”
[68]T602.15.
[69]T605.
[70]T611.19 - .24.
Ms Furusho gave evidence that 30 face-to-face teaching periods was not an over-allocation.[71] She also gave evidence about the lesser workload involved in Year 9 classes because of options and the changeover in Term 4. Ms Furusho provided a commentary on the plaintiff’s estimate of the number of hours he worked (66.85 per week, totalling 2,553 for a 38 week school year).[72] In Ms Furusho’s estimation, the time that would be taken to perform the plaintiff’s workload would have been 1,975 hours for a 38 week school year - making a total of a little under 52 hours per week.[73]
[71]T612.
[72]Exhibit A.
[73]See p 2 of Exhibit 7.
Ms Furusho, like other defendant’s witnesses, was cross-examined extensively about a number of matters, including the notes of a Haileybury Languages Department meeting of 28 February 2007.[74] In those notes, under the heading “Precinct Feedback Castlefield”, it is recorded:
“General feeling by staff of being overworked (eg N. Athong on 31 pds)”.
[74]Exhibit M.
Ms Furusho was asked and answered the following questions:[75]
[32] Adopting a qualification that hinges upon whether psychiatric injury is or may be sustained from performance of the work would require consideration of questions that are closely related to issues of foreseeability and it is convenient to turn to those issues.
[33] In Tame v New South Wales, the Court held that ‘normal fortitude’ was not a precondition to liability for negligently inflicting psychiatric injury. That concept is not now to be reintroduced into the field of liability as between employer and employee. The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.
[34] It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. Yet it is that proposition, or one very like it, which must lie behind the Commissioner’s conclusion that it required no particular expertise to foresee the risk of psychiatric injury to the appellant.
[35] The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.
[36] Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer’s obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.”[105]
[105]Footnotes omitted. And see further, (2005) 222 CLR 44, 58 [37]-[38].
Finally, the Court held that even though the employee had made many complaints to her superiors, none of these suggested (either expressly or impliedly) that her attempts to perform her duties were putting, or would put, her health at risk. The employee did not at any time suggest that she was vulnerable to psychiatric injury or that the work was putting her at risk of such injury. The employee’s complaints may have been understood as suggesting an industrial relations problem, but they did not suggest danger to her psychiatric health. When she did go off sick, she (and her doctor) thought that the illness was physical, not psychiatric. The Court concluded that there was therefore, in those circumstances, no reason for the employer to suspect risk to the employee’s psychiatric health.
Following Koehler, the Queensland Court of Appeal was required, in Hegarty v Queensland Ambulance Service,[106] to consider a case where an ambulance officer claimed damages for work-related psychiatric injuries. The ambulance officer’s case was that he was required to attend many traumatic and distressing scenes during the course of his employment. He did not receive any (or any adequate) counselling or psychological support with respect to distress he suffered as a result of his work, and he eventually sustained a psychiatric injury. Keane JA,[107] referred to Koehler in the following terms:[108]
“[47] In the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in the recent decision of the High Court in Koehler v Cerebos (Australia) Ltd, it was said that a stable appreciation of the content of the employer’s duty to take reasonable care is essential; and that it is erroneous to proceed on the assumption that ‘the relevant duty of care [is] sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kind of steps required of an employer.’ Further, ‘litigious hindsight’ must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law’s insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee’s mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.”[109]
[106][2007] QCA 366.
[107]As his Honour then was.
[108][2007] QCA 366 [47].
[109]Footnote omitted.
Hegarty was a case where the defendant acknowledged that “there was a foreseeable risk that regular exposure to the vivid human tragedy of scenes of accident and illness could cause psychological stress, and possibly psychiatric injury, to ambulance officers”.[110] In the course of his reasons,[111] Keane JA made a number of observations with which I respectfully agree:[112]
(a)First, in a negligent infliction of psychiatric injury case, the risk of injury may be less apparent than in cases of physical injury.
(b)Secondly, whether a risk is perceptible at all may in the end depend upon the vagaries and ambiguities of human expression and comprehension.
(c)Thirdly, whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works.
(d)Fourthly, the private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty in this respect, must be acknowledged as important considerations.
(e)Fifthly, the dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty that might be asserted by a plaintiff.
(f)Sixthly, issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating an employee’s problems.
[110][2007] QCA 366 [42].
[111]Which reasons were agreed with by Jerrard JA and Douglas J.
[112][2007] QCA 366 [41]-[43].
However, all of that said, having regard to Koehler (and in particular the passages to which I have already referred), it is now necessary to consider the terms of the contract between the parties in the present case.
Did the contract between the parties specify a total contractual maximum of face-to-face teaching periods?
A centrepiece of the plaintiff’s claim is that, on a proper construction, the letter of employment, the AWAs and the Staff Welfare Arrangements documents to which I have referred,[113] mandate a contractual maximum number of face-to-face teaching periods per week. The plaintiff submits that the contractual maximums were 23 or 26 periods in 2005, 22 or 25 periods in 2006 and 21 or 24 periods in 2007. These submissions must be rejected.
[113]The undated Staff Welfare document, the 2005 Staff Welfare Arrangements document and the 2006 Staff Welfare Arrangements document.
If one starts with the letter of employment, one notes that, on its terms, the plaintiff accepted an offer of employment “on the conditions detailed in [the] letter and the [first] AWA”. While the letter of employment refers the plaintiff to an attached Staff Welfare Arrangements document, nothing in the letter imports the terms of that document into the contract between the parties.
If one then turns to the first AWA, one sees that, by its first paragraph, it is the AWA together with the letter of employment that “sets out the terms of [the] contract of employment”. The second paragraph of the AWA provides that the conditions of the AWA will prevail “except where explicitly changed by the procedures set down in the 2005 Staff Welfare Arrangements [document]”. In the third paragraph, it is then provided that the 2005 Staff Welfare Arrangements document sets out in detail the defendant’s policies. This paragraph provides that the defendant may change, delete or add to the 2005 Staff Welfare Arrangements document from time to time – but that such changes will be after consultation with staff concerned and will be formalised through the Staff Welfare Policy Review Committee. The fourth paragraph then provides in the event of inconsistency between the AWA and the letter of employment on the one hand, and the Staff Welfare Arrangements document on the other hand, the AWA and the letter of employment will prevail. The same language is used in the second AWA with reference to the 2006 Staff Welfare Arrangements document.
While the bulk of the third AWA was not due to come into effect until after the plaintiff ceased employment with the defendant, the third AWA made provision for the 2006 Staff Welfare Arrangements to continue to apply during 2007. However, on page 2 of the third AWA, it was expressly stated that the 2006 Staff Welfare Arrangements document did not constitute conditions of the letter of employment or terms of the AWA. By the provisions of the third AWA, the 2006 Staff Welfare Arrangements document “provide[d] a basis for instructions to [the plaintiff] by Haileybury as [his] employer in accordance with [his] contract of employment, subject to [his] letter of offer and this AWA”.
On their face, the letter of employment and AWAs provide that the terms of the contract between the plaintiff and the defendant are as set out in those documents. The fact that those documents make reference to Staff Welfare Arrangements documents containing the defendant’s policies does not mean that everything (or anything) that is written in those documents constitutes a term or terms of the plaintiff’s contract of employment. Indeed, the third AWA expressly provides to the contrary.
On first examination, the references to Staff Welfare Arrangements documents in the first four paragraphs of the first two AWAs are not easily reconcilable. The relevant AWA and letter of employment are expressly stated to contain the terms of the plaintiff’s contract of employment. Then, the AWA is said to provide the terms and conditions and operates to the exclusion of any and all other agreements. Then, the AWA’s terms and conditions are said to prevail “except where explicitly changed” by a procedure in a Staff Welfare Arrangements document. Finally, any inconsistency between any provision of the AWA and letter of employment and any provision of the relevant Staff Welfare Arrangements document, is resolved in favour of the AWA and the letter of employment.
However, all of that said, when one reads the letter of employment and the relevant AWA together, it is tolerably clear that the terms and conditions of the contract between the parties are set out in those documents, and those documents alone. The possibility then exists that a relevant Staff Welfare Arrangement document might contain a procedure which explicitly changes a term set out either in the letter of employment or the relevant AWA. One would then construe the inconsistency provision as one that makes any part of a policy contained in a relevant Staff Welfare Arrangements document, that does not explicitly change a relevant term or condition in an AWA or the letter of employment, inoperable in respect of the plaintiff, insofar as there is any inconsistency between that policy (or part thereof) and the relevant AWA and letter of employment.
It should immediately be noted at this stage, that the plaintiff has never suggested that any of the relevant Staff Welfare Arrangements documents contain procedures which explicitly change terms or conditions in the letter of employment or any relevant AWA. Instead, the plaintiff submitted that where the Staff Welfare Arrangements documents made “provisions not covered by the letter of employment or the AWAs”, they were “contractual conditions if expressed with sufficient certainty and without inconsistencies with the AWAs or letter of employment”. It was then submitted that a “reasonable bystander, looking at these documents and the parties making them, would have said that the Staff Welfare Arrangements documents contained contractual terms.”[114] Reliance was then placed on the often cited statement of the High Court in Toll (FGCT) Pty Limited v Alphapharm Pty Ltd:[115]
“This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.”[116]
[114]T880 – T881.
[115](2004) 219 CLR 165, 179 [40].
[116]Footnotes omitted.
While the passage relied upon by the plaintiff undoubtedly represents the law concerning the proper approach to be taken in relation to the construction of contracts, neither this passage nor the authority relied upon by the plaintiff supports the plaintiff’s submissions. The plaintiff’s suggested construction does substantial violence to the text of the AWAs. For the plaintiff’s construction to be accepted, the passages of the AWAs to which I have referred would have to be re-written. At their highest, the Staff Welfare Arrangements documents could only be contractual where their provisions explicitly change a term or condition set out in an AWA.[117]
[117]During the course of the plaintiff’s submissions, reference was also made to the judgment of Wilcox J in Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784. While that case dealt with issues of whether certain provisions in certain documents were contractual (and see also the same issues, but treated differently by the Court of Appeal, in Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 (reported in (2007) 163 FCR 62, but only on the question of costs)), counsel for the plaintiff ultimately only relied upon paragraphs [320] to [330] of Wilcox J’s judgment, and mainly for the statement at [330] that “[i]t is notorious that stress and disturbance of mind may lead to a psychological disability” (T880.3 - .15). That said, to the extent that the plaintiff placed any reliance upon Nikolich (either at first instance or on appeal) as supportive of the proposition that Staff Welfare Arrangements documents were contractual, I reject this submission for the reasons given above.
For the above reasons, the plaintiff’s submission that the Staff Welfare Arrangements documents contain contractual terms imposing specific mandatory maximum numbers of periods of face-to-face teaching cannot be accepted. However, even if it could be said that material in the Staff Welfare Arrangements documents was imported into the terms of the contract, so as to be additional to those found in the letter of employment and the AWAs, on a fair reading of the whole of the Staff Welfare Arrangements documents, one does not find any “terms” mandating contractual maximums in respect of face-to-face teaching. Rather, the Staff Welfare Arrangements documents talk in terms of flexibility – requiring teachers to show a high degree of flexibility, but also aiming at reasonable overall expectations.
Further, the fact that, as the plaintiff contends, these documents disclose different possible maximum face-to-face loads for the same time periods, tells against a construction that there was a mandatory specified maximum load for each year.
While the Staff Welfare Arrangements documents might be construed as identifying “normal” workloads or “notional full workloads”, they do not, in terms, identify maximums, requiring the plaintiff to work in excess of, which would constitute a breach of contract. Had the parties wished to be so prescriptive, then such terms could easily have been drawn. Instead, the Staff Welfare Arrangements documents disclose arrangements that had significant flexibility – with the capacity for the parties to discuss or negotiate relevant matters. Indeed, the 2006 Staff Welfare Arrangements document expressly provided:
(a)“Staff are always informed about, and wherever possible, participate in decisions which affect their working lives”; and
(b)“Staff are free to request information, ask questions, seek assistance or ask for the reasoning behind decisions, or constructively challenge the status quo”.
The plaintiff’s opinion/expert evidence
The plaintiff called three witnesses to give opinion/expert evidence. First, the plaintiff called Toni Mellington, a psychologist who gave evidence that she also had experience in assessing and treating mental health issues arising in the workplace, and the development and implementation and assessment of risk management strategies for employers to address workplace psychological health and psychosocial issues. Ms Mellington gave evidence of her opinion as to a lack of appropriate written occupational health and safety policies and the like concerning overwork and stress that might be experienced by employees of the defendant. As one of a number of opinions she expressed, Ms Mellington said:
“The lack of appropriately accessible and demonstrable support and deficient capacity or willingness to address psychosocial hazards or psychological conditions, teamed with lacking, unclear or inconsistently applied systems and structure to guide the operations of the workplace, culminated in psychological injury to Mr Taylor.”[118]
[118]See Exhibit H. See further, T375 – T409.
Secondly, the plaintiff called Dr Keith Tronc, a consultant in educational administration with expertise in teaching, educating teachers, administration, risk management and law.[119] Dr Tronc expressed a number of opinions concerning the plaintiff’s workload. His principal views were that the plaintiff “was subjected to overwork, with demands greater than expected, in both his teaching contact hours, and also the practical requirements of his Head of House duties, and his pastoral duties, with [a] lack of adequate compensatory offsets”, and that there appear to have been “systemic failures” in the defendant, amongst other things, not adequately identifying risks, nor implementing appropriate risk management initiatives.[120]
[119]With respect to law, Dr Tronc was a Queensland barrister between 1990 and 2012.
[120]See Exhibit K. See further, T412 – T456.
Thirdly, the plaintiff called Michael Quin, a retired school principal. Mr Quin gave evidence of his extensive experience in the oversight and management of educational issues in secondary schools, including staff issues, human resources, training, risk management, timetabling, counselling and the like. Mr Quin gave evidence that in his opinion, and based on his experience, the plaintiff’s teaching workload was too high and “of concern”. Mr Quin contrasted the plaintiff’s workload at Haileybury with workloads imposed in other school systems and by an award in operation in those (or some of those) schools. As part of his evidence, Mr Quin also contrasted the plaintiff’s workload at Haileybury with the workload the plaintiff had in his earlier employment.
Mr Quin also gave evidence as to what was said to be a notorious unpopularity among teachers for teaching at a Year 8 level. Mr Quin’s opinions included the following:
“There appears limited understanding of a hardworking dedicated employee whose efforts under significant pressure have compromised his health and his career as a teacher.”
“While all subjects bring particular teaching challenges in a secondary school, the teaching of LOTE in junior secondary classes is regarded as especially difficult in terms of classroom management. Teachers often have difficulty convincing adolescents of the value of the subject. Many secondary schools make the study of LOTE at Year 9 an elective for this reason. Elective status means that the subject attracts those students with a genuine interest, and is an arrangement that impacts on improved classroom management.”[121]
[121]See Exhibit L. See further T458 – T532.
Like Ms Mellington, Mr Quin expressed views critical of the defendant’s policies. For example:
“The Risk Assessment and Treatment Plan (2005)[122] includes the school developing ‘support/welfare policies and/or procedures to cover issues affecting students/staff’ with reference to various issues including stress management, workplace counselling and general health concerns. The college claims the policies and processes are ‘progressively being established and reviewed’. The document does not provide a timeline for addressing this matter.”
[122]Part of Exhibit 5.
The defendant objected to the opinion evidence of the plaintiff’s three experts, contending that their evidence infringed well known principles as to admissibility.[123]
[123]See generally, HG v The Queen (1999) 197 CLR 414; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; and Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.
It is not necessary for me to rule on each of the defendant’s objections. I am prepared to assume in the plaintiff’s favour that the opinion evidence given by all three witnesses is admissible. The short problem for the plaintiff is that to the extent these witnesses gave evidence as to inadequate policies and/or overworking the plaintiff, I was not persuaded by any of it.[124] As has been said repeatedly, expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the trier of fact. Their evidence, like the evidence of any other witness, remains to be analysed and accepted or rejected by the trier of fact.[125]
[124]While it is not strictly necessary, I should record for the sake of completeness that I was not particularly impressed with the evidence of the three plaintiff’s experts. Dr Tronc struck me as being no more than an advocate for the plaintiff’s case. The way in which he was instructed was unsatisfactory. Further, it appeared to me that no matter what underlying foundation of his opinion was cut away, there was no prospect that he would change the initial opinions he expressed which were critical of the defendant. So far as Ms Mellington was concerned, her opinions struck me as being more a counsel of perfection (in circumstances where one could not say with any confidence that even if one followed such counsel, a different result might have been achieved). So far as Mr Quin is concerned, I formed the view that he was doing his best to describe his experience of work requirements as compared to what was required of the plaintiff. That said, as he fairly conceded, he has never worked at a school like Haileybury: T502.28.
[125]See MA v The Queen [2013] VSCA 20 and the authorities cited therein.
The plaintiff’s witnesses’ criticisms of the defendant’s policies were largely confined to criticisms of written policy documents given to the plaintiff’s experts. However, the existence (or non-existence) of particular written policy documents did not foreclose (as was in fact described by the defendant’s witnesses) the existence of policies that had not been reduced to writing (but which, as the evidence disclosed, were discussed between staff and/or at staff meetings). While in a perfect world one might have prominently displayed written policies for all to see, the law does not of course require a standard of perfection. There was much debate in this case concerning the terms of the various written policy documents. However, in the end I was left unpersuaded that on a consideration of the whole of the evidence I should find some defect or deficiency which constituted a breach of the defendant’s obligation to take reasonable care in this case.[126]
[126]Or a breach of any concomitant contractual obligation.
More importantly, having seen and heard the plaintiff give evidence (including dealing with histories he has previously given concerning his reasons for undertaking or not undertaking particular forms of treatment), I am far from persuaded that any set of policies that might have satisfied the various criticisms levelled by the plaintiff’s experts, would or might have made any difference in this case. It seems to me to be no more than the merest speculation to say that policies of the kind suggested by the plaintiff and his experts would have made any particular difference in this case.
The resolution of this proceeding
This case has a number of the hallmarks of “litigious hindsight” described by Keane JA in Hegarty v Queensland Ambulance Service.[127] In the close cross-examination of the defendant’s witnesses, there were some answers given that were seized upon by the plaintiff in address as demonstrating circumstances from which it was contended that the defendant knew or ought to have known that the plaintiff was under stress, and was therefore at risk of psychological injury, during the course of his employment.[128] I have considered all of these submissions and the evidence on which they were based. However, in the end, I am quite unpersuaded as to the plaintiff’s contentions. In my view, it is far more probable that the plaintiff (a professional in a profession that undoubtedly has, like some other professions and occupations, significant levels of stress associated with it) presented to his colleagues and superiors at work as a dedicated and keen member of his profession. Emailed complaints from time to time as to workloads or difficulties being experienced (and even discussions concerning them) do not bespeak the potential for, or existence of, psychiatric injury or risk.
[127][2007] QCA 366 [47].
[128]For example, Mrs Gill’s evidence that a Haileybury teacher had to have stamina.
A significant amount of time was taken by the plaintiff’s counsel in an attempt to demonstrate that the language of particular complaints[129] and the discussion of identified problems disclosed circumstances that obliged the defendant to take steps which would have alleviated the risk of the plaintiff suffering psychiatric injury. However, in my view, whether considered in isolation or together, none of the matters relied on by the plaintiff disclosed a breach of duty (contractual or otherwise) in this case.[130]
[129]And in particular the plaintiff’s emails of September 2006 and March 2007.
[130]During the course of his final address, senior counsel for the plaintiff made submissions about various individuals who he identified as “missing witnesses” (T872 – T873). Those submissions caused me to scrutinise more closely the evidence of the defendant’s witnesses, the inferences that the defendant invited me to draw and the defendant’s case generally (cf O’Donnell v Reichard [1975] VR 916; Kuhl v Zurich Financial Services (2011) 243 CLR 361, 384-5 [63]-[64]; and Wodonga Regional Health Service v Hopgood (2012) VSCA 326 [69]). However, in the end, the failure by the defendant to call these additional witnesses did not persuade me to accept the plaintiff’s case as to excessive work or as to the question of whether the defendant was (or ought to have been) on notice of a relevant risk of psychiatric injury.
As was said by Keane JA in Hegarty v Queensland Ambulance Service,[131] whether a risk is perceptible at all may in the end depend upon the vagaries and ambiguities of human expression and comprehension. The plaintiff had one construction of the various emails and notes of meetings;[132] the defendant had another. It is sufficient to say that the plaintiff has not persuaded me that his preferred construction of the various documents and communications should be accepted over the defendant’s preferred construction. In a busy working environment, one often sees emails that identify problems, express frustration, and even use language which one might not use if one was writing a considered letter. But one cannot rationalise back from what is now known (ie, that the plaintiff now suffers from a significant psychiatric condition) to a proposition that emails written by him (or communications made by him) expressing frustration, or describing problems, now show a risk of psychiatric disorder which could, and should, have been identified at the time of the relevant email or communication.
[131][2007] QCA 366 [41]-[43].
[132]Exhibits C, D, M and 1.
A major part of the plaintiff’s case involves the proposition that the plaintiff was overworked in his employment with the defendant, and that this excessive work was required to be performed in breach of the contractual arrangements between the parties and/or a breach of the defendant’s duty of care owed to him. I reject both of these propositions. By the contract that existed between the parties during the course of the plaintiff’s employment, the plaintiff was required to do the work which he actually performed. He agreed to do this work. To the extent that he was not given a time allowance in respect of additional duties, this was a matter for negotiation and discussion (pursuant to the Staff Welfare Arrangements documents) between the plaintiff and the defendant. There were no contractual maximum number of face-to-face periods in any year that the plaintiff was employed by the defendant. Again, there were policies in force pursuant to which the plaintiff (an intelligent, well educated member of a profession) was capable of raising and discussing with other intelligent, well educated members of his profession at the school.
That the plaintiff’s workload was heavy is undoubted. However, that is the job he chose to do at the time he commenced his employment with the defendant. Without the benefit of hindsight, there was no reason for the defendant to suspect that the workload it required of the plaintiff placed him at any risk of psychiatric injury.[133]
[133]In reaching this conclusion, I specifically reject the submission of the plaintiff that the use of the words “tired and angry” in the plaintiff’s email of 13 September 2007 (Exhibit C) was a “very strong warning sign given the mild mannered nature that has been the description of the plaintiff” (T875.24 - .27).
Conclusion
The plaintiff has not established any breach of contract or negligence on the part of the defendant. Further, the plaintiff has failed to establish that the creation or implementation of additional policies, the education of staff contended for, the provision of further information or training, the provision of counselling to the plaintiff or the offering of treatment to the plaintiff would probably have alleviated the risk of the plaintiff suffering psychiatric injury.[134] Additionally, having regard to the histories given by the plaintiff concerning his various difficulties with a particular student or students, it may be doubted that any particular reduction of the plaintiff’s workload would have been likely to have made any difference in any event.[135]
[134]Cf the plaintiff’s evidence at T174.15 - .28 (set out in paragraph [62] above).
[135]See, for example, the history given to Reinhild Robertson (referred to in paragraphs [72]-[73] above). See further, p 6 of the report of Dr Rose dated 20 February 2008 (part of Exhibit 9) and p 3 of the report of Helena McCallum (part of Exhibit J).
The plaintiff’s claim must be dismissed.
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