WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2014 WAIRC 01137

DELIVERED : WEDNESDAY, 15 OCTOBER 2014

FILE NO. : M 38 OF 2011

CLAIMANT

AND

Director General, Department of Education

RESPONDENT

Catchwords : Failure to comply with Clause 10.3 of the Education Assistants’ (Government) General Agreement 2010; whether the Claimant has proven one or more breaches of Clause 10.3 of the Education Assistants’ (Government) General Agreement 2010; whether admission of the breach of Clause 10.3 of the Education Assistants’ (Government) General Agreement 2010 was a contingent admission; whether a penalty is appropriate; quantum of penalty.

Legislation : Industrial Relations Act 1979     

Instruments : Education Assistants’ (Government) General Agreement 2010

Cases Referred to

In Judgement : United Voice WA v Director General, Department of Education [2014] WAIRC 00324

  Director General, Department of Education v United Voice WA [2013] WASCA 287

  United Voice WA v Director General, Department of Education [2014] WAIRC 00994

  United Voice WA v Director General, Department of Education [2012] WAIRC 00778

Result : Single breach proven; penalty imposed.

Representation

Claimant : Mr S Millman (of Counsel), instructed by Slater & Gordon Lawyers, appeared for the Claimant

Respondent : Mr D Matthews (of Counsel), instructed by the State Solicitor for Western Australia, appeared for the Respondent

REASONS FOR DECISION

Background

1         These reasons concern whether the evidence received at the Trial of this Claim establishes one or more breaches of Clause 10.3 of the Education Assistants’ (Government) General Agreement 2010 (the Agreement).

2         The Trial commenced on 18 April 2012 but was adjourned because the Claimant had failed to sufficiently particularise its Claim. The particulars as they then stood did not sufficiently disclose the case that the Respondent was called upon to answer.   Consequently, the Claimant was ordered to provide further and better particulars of its Claim.

3         On or about 17 May 2012, the Claimant lodged and served its further and better particulars of claim in the form of an Amended Statement of Claim (ASC).  The ASC provided some detail with respect to various alleged breaches of the Agreement.  With respect to the alleged breach of Clause 10.3 of the Agreement, the Claimant said, at paragraph 3.6:

“PARTICULARS

…

(b) From 31 January 2011 to 5 September 2011, the Respondent breached clause 10.3 of the Agreement at least five times because the district offices were not responsible for conducting inductions:

(i) The period spans more than 2.5 terms and inductions are to be held twice each term during term time (clause 10.3).

(ii)  The Applicant did not receive any notification that there were no new employees commencing in any term and that therefore the second induction in the term was not necessary.

(iii) The district offices were not responsible for conducting any inductions during this period.

(c) From 31 January 2011 to 5 September 2011, the Respondent breached clause 10.3 of the Agreement at least five times by failing to hold inductions for new employees twice each term during term time for new employees.

  (i) The period spans more than 2.5 terms.

(ii) The Applicant did not receive any notification that there were no new employees commencing in any term and that therefore the second induction in the term was not necessary.

  (iii) Inductions were not held twice each term during this period.”

4         Paragraph 3.6(b) of the Claimant’s ASC encapsulates the Claimant’s case concerning the alleged breach of Clause 10.3.

5         The Claimant discontinued part of its Claim on 28 May 2012 and when the Trial resumed on 30 May 2012 the Respondent made certain admissions.   In the end the Trial was concerned only with whether Clause 10.3 of the Agreement had been breached.  In that regard, although the Claimant called witnesses, none of them specifically testified about individual breaches of Clause 10.3 of the Agreement.  The Claimant proceeded on the basis that the several alleged breaches were capable of proof by mathematical calculation based on documentary and other viva voce evidence received.

6         At the conclusion of the Trial I determined that because the District Offices had been abolished, and there had been no agreement that the Offices would exist for the life of the Agreement, Clause 10.3 of the Agreement was incapable of enforcement.  I found also that Clause 10.3 of the Agreement was no more than a mechanical provision relating to the delegation of responsibility to District Offices, and that upon those Offices being abolished, that mechanism became redundant.  I concluded that, in any event, the common law defence of impossibility enabled exculpation of the Respondent.

7         My decision (see United Voice WA v Director General, Department of Education [2012] WAIRC 00446) was appealed to the Full Bench of the Western Australian Industrial Relations Commission (WAIRC).  The decision of the Full Bench of the WAIRC was then appealed to the Western Australian Industrial Appeal Court (WAIAC).  It suffices to say that the WAIAC found that I was incorrect in my conclusions, and determined that the matter should return to this Court to be dealt with in accordance with the construction it gave to Clause 10.3.

8         In its decision the WAIAC determined (see Director General, Department of Education v United Voice WA [2013] WASCA 287 at paragraph 33 per Pullin J with whom Le Miere J agreed) that:

“…  The Director General contravened the Agreement if she failed to comply with the promise in cl 10.3.”    

9         When the matter returned to this Court, the Respondent made an admission that she had failed to comply with Clause 10.3 of the Agreement.  That admission was made on the basis that Clause 10.3 created an ongoing obligation which, if not complied with, constituted a continuing and compendious “offence”.

10      The Claimant did not accept that contention.  It insisted that multiple contraventions had occurred.  Those contraventions were subsequently particularised in its Outline of Further and Better Particulars of Breach, lodged on 28 March 2014.  The Claimant particularised 75 breaches of Clause 10.3.  The Claimant contended therein that in 2011, the Respondent should have conducted two inductions in Term 1, two inductions in Term 2, and one induction in Term 3 at each of its District Offices.  In subsequent submissions, the Claimant accepted that there were only 14 District Offices, and therefore the maximum number of breaches was 70.

11      On 16 April 2014, I determined (see United Voice WA v Director General, Department of Education [2014] WAIRC 00324 at paragraph 13), that there could not be a singular breach founded on separate omissions.  I indicated that the Claimant had failed to put direct evidentiary material before me which was capable of establishing each separate breach.

12      As a consequence of that, the Claimant sought to reopen its case in order to put further evidentiary material before me.  That application was refused (see United Voice WA v Director General, Department of Education [2014] WAIRC 00994).

Issues

13      On 1 October 2014, a hearing was conducted to resolve the following issues:

1. whether the evidence received at Trial is capable of establishing one or more breaches of Clause 10.3; and
2. if so, whether the Respondent should be cautioned, or alternatively, penalised in accordance with section 83(4)(a)(ii) of the Industrial Relations Act 1979.

Determination

14      The Claimant concedes that there is no direct evidence which goes to prove each alleged breach.  It accepts that its case is an inferential one based on evidence and other materials before this Court. Such materials include the Annexures attached to the ASC lodged on 17 May 2012 (the ASC Annexures). 

15      The Claimant asserts that there have been multiple breaches of Clause 10.3.  It concedes however that it will be difficult for it to particularly identify each and every breach of Clause 10.3.  It nevertheless says that there has been any number of failures to conduct inductions at District Offices, as is apparent from the number of schools and employees involved, as set out in the ASC Annexures.  Further, Exhibit 1, being a document entitled “Education networks and regions: New ways of supporting schools”, and Exhibit 7, being a document entitled “Public education Discover a world of opportunities Education Regions”, provide evidence about the number of Regional Offices then existing.  The Claimant says that when all of that information is taken together, it could be concluded that multiple breaches of Clause 10.3 have occurred.  At its highest, the Claimant says that there have been dozens of breaches.

16      The Claimant contends that at its lowest, the available evidence proves at least one breach. Alternatively if the evidence does not support the finding of a breach of Clause 10.3, its breach will nevertheless have been made out on the Respondent’s admission. It says that the Respondent cannot now resile from the admission made on 20 March 2014. 

17      The Respondent on the other hand, submits that the Claimant has not been able to identify each breach as to time, place and circumstance.  It says that the documentary evidence before the Court, including the ASC Annexures, does not go so far as to establish which schools and which employees are listed to a particular District Office.  In the circumstances, the evidence is incapable of establishing one breach, let alone multiple breaches.

18      In addition, the Respondent submits that the admission made cannot be held against her in the circumstances because the admission was made in the context of a compendious breach.  It was a contingent admission which is of no effect, given my finding that it cannot be a compendious breach.

19      In determining this matter, I observe that the Claimant’s position as to the number of breaches of Clause 10.3 committed has shifted throughout the course of the proceedings.  It has shifted from “at least five” breaches to 70 breaches.  At no stage, either in the pleadings, or in the evidence, was each particular breach identified as to time, place and circumstance.

20      With respect, it seems to me that the Claimant should have, in its pleadings, identified each and every alleged breach and then called evidence to prove the same.  Instead, the Claimant attempted in an overarching way to prove non-compliance with Clause 10.3, and then invited the Court to conclude, by inference and mathematical calculation, that multiple specific breaches had been proven.

21      It seems to me that the process adopted by the Claimant was fundamentally flawed.  There must be specificity in each separate allegation, as to time, place and circumstance and the requisite proof going to those issues.

22      Whilst recognising that this Claim is a civil proceeding to be determined on the balance of probabilities, the particularisation that is required in this and other like matters is similar to that required in a criminal proceeding.  For example, in a criminal case, it is insufficient to allege that an accused had, over a period of time, stolen various items from various stores.  What is required is the identification of the time, place and circumstance of each act of stealing. A similar approach should be adopted in matters of this type, given that a separate penalty may be imposed for each breach.

Has the Claimant Established a Breach, or Alternatively Breaches, of Clause 10.3?

23      It is clear to me that the evidence as it stands does not enable proof of multiple breaches of Clause 10.3 of the Agreement.  The evidence does not permit the creation of a link between the individuals and schools identified in the ASC Annexures, and any particular District Office.

24      At its highest, the Court could conclude, based on information in the ASC Annexures, that there has been a failure to conduct inductions at a District Office.  The evidence however, does not permit the identification of the particular District Office.  In this instance, the failure to identify the District Offices will not defeat the Claim, because it is self-evident that the requirement to hold inductions at a District Office was not complied with.  To that extent, the Claim is proven.

25      Even if the evidence did not permit such a finding, the Claim insofar as it relates to one breach, can be established on the admission made.  The admission was made by the Respondent, following the decision of the WAIAC.  In making the admission, the Respondent acknowledged that she had failed to comply with Clause 10.3 of the Agreement.  The admission was not contingent.  It simply recognised non-compliance with Clause 10.3.  Having made the admission, the Respondent cannot now resile from it.  There was nothing equivocal about the admission.  At the very least, by that admission, the Respondent acknowledged that in at least one instance, Clause 10.3 of the Agreement had not been complied with.

26      The evidence does not however, permit the admission to extend beyond that.

27      The concession made establishes that the Respondent acknowledges that she failed to facilitate inductions at a District Office.  Such is sufficient.

Consequential Orders

28      The Respondent contends that she has already been adequately punished for the failure to hold inductions (see United Voice WA v Director General, Department of Education [2012] WAIRC 00778), and that having regard to the totality principle in sentencing, she should not be further penalised.  She suggests that a caution be issued.

29      The Claimant suggests that the failure to comply with Clause 10.3 of the Agreement has resulted in significant consequences to both United Voice WA and its members.  The stance taken by the Respondent shows a lack of contrition, and it has put the Claimant to cost. 

30      In determining this outstanding issue, I refer to my reasons for decision on penalties, delivered on 23 August 2012 (supra).  I adopt what I said in that decision concerning the available remedies, and the sentencing principles applicable.

31      In addressing the issue as to whether in this instance it is appropriate to caution the Respondent, I acknowledge that the breach of Clause 10.3 of the Agreement was of particular significance to the Claimant because it took away the logistical benefits of inductions being conducted at a central place.  That, as a matter of principle, loomed large for the Claimant.  In that circumstance, the failure to comply with Clause 10.3 went beyond a mere technical breach or a breach of little significance which would have otherwise attracted a caution.

32      The failure was a significant departure from what was required and was something which led to consequences over and above that for which the Respondent has already been punished.  In the circumstances, even taking into account the totality principle, a monetary penalty will be required to reflect the consequences of the breach.  Totality, in appropriate circumstances, may be relevant to the quantum of the penalty to be imposed. Although relevantly considered in this matter it will not loom large in the outcome.

33      The maximum penalty available is $2,000.00.  In imposing a penalty, the Court must recognise the singular breach in light of an otherwise unremarkable record.  The fact that the Respondent did not make an early admission with respect to the breach significantly lessens the mitigating effect of the admission.  Absent an early admission, the penalty that would be handed down for “offences” in circumstances of prior good record would be in the region of 25 per cent of the maximum penalty.  I see no reason why this matter should be treated differently.   The imposition of a penalty of $500.00 is appropriate and will not, in the context of the penalties previously imposed, offend the totality principle in sentencing.

34      I order that the Respondent be penalised $500.00. For the reasons previously expressed in my decision delivered on 23 August 2012 (supra), I order that the penalty be paid to the Claimant.

G. CICCHINI

INDUSTRIAL MAGISTRATE